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ASHESH DEVENDRABHAI VYAS AND OTHERS Versus STATE OF DELHI & ANR.

2015 (6) TMI 149 - DELHI HIGH COURT

Dishonour of cheque - Nature of transaction - Discharge of debts or not - Held that:- Court is not required to enter into the arena of disputed facts relating to the nature of transaction of being of assignment or of discharge of guarantee. Whether any specific permission is required from Reserve Bank of India under the FEMA is again a question of fact, which has to be considered in light of nature of transaction between the parties. In any case, this Court is of the considered opinion that no c .....

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rments regarding the part played by petitioners in the transaction in question is lacking. - Since, prosecution of petitioners in these two complaints cannot be said to be vexatious or amounting to fishing inquiry against them, therefore, it cannot be said that continuance of instant proceedings against petitioners is an abuse of the process of the law. - Appeal disposed of. - CRL.M.C. 2815, 2816, 2817, 2819, 4395, 4396 & Crl. M.A.No.14102, 14104, 14106, 14113, 17954/2014 & 15066/2014 - Dated:- .....

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) and the common order of 2nd June, 2010 (vide which petitioners have been summoned as accused), is sought on merits by M/s Rachana Global Excavation Limited and its Chairman, Managing Director and a Director. In the above captioned four petitions, petitioner - Nalin, Chairman of M/s Rachana Global Excavation Limited (hereinafter referred to as M/s Rachana Global) and petitioner - Ashesh, Director of M/s Rachana Global seek to challenge summoning order of 2nd June, 2010 on the ground that there .....

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ot issued in discharge of any debt or existing liability and receipt of these two cheques is hit by Section 3(2) of Foreign Exchange Management Act, 1999 (hereinafter referred to as FEMA ). With the consent of learned counsel for the parties, the above captioned six petitions were heard together and are being disposed of by this common judgment. The undisputed facts emerging from the two complaints in question are that a 100% foreign subsidiary of M/s Rachana Global in Mozambique, Africa entered .....

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The parties agreed to set off these amounts vide 1220L Amendment No. 3 Agreement dated 31.12.2009. Finally, M/s Rachana Global became liable to pay to M/s JSPL US $ 7,140,274 by 31st January, 2010 along with interest @ 12 % pa w.e.f. 1st October, 2009 till 31st January 2010 which was calculated and agreed to be US $ 2,85,611/- thereby totaling US $ 7,425,885. M/s Rachana Global gave a letter of 18th January, 2010 to M/s JSPL in which M/s Rachana Global acknowledged the liability of M/s Rachana t .....

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laints are bereft of necessary averments to impute vicarious liability on petitioners - Nalin and Ashesh. It was pointed out by learned counsel for petitioners that in these two complaints, there are no averments to indicate that petitioners - Nalin and Ashesh were Incharge and were responsible for the dishonor of cheques in question and so bald assertions made in these two complaints are not sufficient to hold petitioners - Nalin and Ashesh vicariously liable for the offence in question. It was .....

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/s Rachana Global and its Managing Director - Manoj Kumar, it was vehemently submitted that as per the two complaints in question, the liability to pay the debt was of one foreign company - M/s Rachana Global in Mozambique to another foreign company - M/s JSPL in Mauritius and none of these companies are party to the complaints in question. Learned counsel for petitioners asserted that post dated cheques in question were enclosed with letter of 18th January, 2010 and in the said letter, it was s .....

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us Airways Private Limited and others v. M/s Magnum Aviation Private Limited and Another 2014 SCC Online SC 305; Collage Culture and Ors. V. Apparel Export Promotion Council 2007 (99) DRJ 251; Shanku Concretes Private Limited and others v. State of Gujarat and another 1999 SCC Online Guj 366; M/s Balaji Seafoods Exports (India) Limited and another v. Mac Industries Limited 1999 (I) CTC 6 ; Icon Buildcon Private Limited v. Aggarwal Developers Private Limited and others 2014 (I) MWN (Cr.) DCC 177 .....

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outstanding liability, is a question of fact, which requires trial. It was pointed out that mere use of word security in letter of 18th January, 2010 does not change the nature of liability, which was existing and enforceable on the day of issuance of the cheques in question. It was vehemently asserted that even a Guarantor is liable for encashment of a cheque, which is towards discharge of debt of another person. It was asserted on behalf of respondent - complainant that proceedings under Sect .....

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ate Limited v. State 2013 (179) CompCas 210; Anil Sanchar v. Shree Nath Spinners Private Limited 2011 (13) SCC 148; HMT Watches Limited v. M.A. Abida and another 2015 SCC Online SC 233; N & S & N Consultants S.R.O v. SRM Exploration Private Limited 2011 (170) DLT 685; N. Rangachari v. Bharat Sanchar Nigam Limited 2007 (5) SCC 108. As regards the complaints in question being hit by FEMA, it was submitted on behalf of respondent - complainant that no specific permission from Reserve Bank o .....

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under Regulation 5 (b) of the Foreign Exchange Management (Guarantee) Regulations, 2000. It was pointed out that the only requirement is of reporting to Reserve Bank of India which too was the obligation of petitioner - M/s Rachana Global and not of the answering respondent - complainant. In the last, it is submitted that Notice under Section 251 of Cr.P.C. has been already framed and application under Section 145 (2) of NI Act stands already allowed and these two complaints cases are at advanc .....

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there has to be specific averments against Director or Officer of accused company for prosecution in complaint under Section 138 of NI Act for holding a person vicariously liable. Keeping in view of the dictum of the Apex Court in Central Bank of India (supra), Anita Malhotra (supra) and National Small Scales Industries (supra), the two complaints in question have been perused and thereafter, this Court finds that it cannot be said by any stretch of imagination that the continuance of proceeding .....

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liability or not, is not required to be pre-judged, when the summary proceedings under Section 138 NI Act are at the fairly advanced stage. To do so, it would be premature. In fact, it is quite debatable as to whether the cheques in question were security cheques or not and it would be most appropriate that this aspect is conclusively determined at the final stage after considering the evidence. Whether the use of word security in the letter of 18th January, 2010 would make it a security cheque .....

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