TMI Blog2008 (8) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... to after the trial is concluded. Admittedly the cheque was given for consideration. The respondent has tried to encash that cheque against consideration which, according to the respondent, was due to it. In addition, Section 139 also creates a presumption in favour of the complainant. Under the circumstances, the onus for proving otherwise lies on the petitioners and can only be discharged at the trial. Furthermore, as held in Modi Cements Ltd. Vs. Kuchil Kumar Nandi, [ 1998 (3) TMI 632 - SUPREME COURT] , once a cheque is issued by the drawer, a presumption u/s 139 must follow, and merely because the cheque in question was undated at the time it was handed over does not mean that it was given without consideration. There is also nothing in law to presume that a cheque, which happens to be a negotiable instrument, must be deemed to have been drawn on the date the undated cheque was handed over. There is also nothing in law to presume that a cheque, which happens to be a negotiable instrument, must be deemed to have been drawn on the date the undated cheque was handed over. On the contrary, as per the ratio of Anil Kumar Sawhney Vs. Gulshan Rai [ 1993 (10) TMI 347 - SUPREME COU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners demanding payment of the cheque amount of ₹ 29,50,000/- within 15 days of receipt of the notice. No reply was sent by the petitioners to this notice. Thereafter on 7.4.2008, the respondent filed the impugned criminal complaint. On 11.4.2008, the Ld. Metropolitan Magistrate took cognizance of the case and issued the impugned order summoning the petitioners under Sections 138, 139 and 141, Negotiable Instruments Act. 4. It is the petitioners‟ case that the Trial Court has failed to appreciate the fact that even if the allegations in the complaint are taken on their face value and accepted in their entirety, they do not constitute the offence as alleged and that therefore, no prima facie case is made out against them. Learned counsel for the petitioners contends that the cheque in question was actually without consideration because, according to him, the cheque was issued by his clients to ensure supply of the goods and not for guaranteeing the erection, commissioning and performance of the plant and machinery. He states that therefore, the respondent had no right to encash the said cheque for any perceived deficiency in performance of the plant and machinery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank within the period specified therein. When a postdated cheque is written or drawn it is only a bill of exchange and as such the provisions of Section 138(a) are not applicable to the said instrument. The postdated cheque becomes a cheque under the Act on the date which is written on the said cheque and the six months period has to be reckoned for the purposes of Section 138(a) from the said date. One of the main ingredients of the offence under Section 138 of the Act is, the return of the cheque by the bank unpaid. Till the time the cheque is returned by the bank unpaid, no offence under Section 138 is made out. A postdated cheque cannot be presented before the bank and as such the question of its return would not arise. It is only when the postdated cheque becomes a cheque , with effect from the date shown on the face of the said cheque, the provisions of Section 138 come into play. The net result is that a postdated cheque remains a bill of exchange till the date written on it. With effect from the date shown on the face of the said cheque it becomes a cheque under the Act and the provisions of Section 138(a) would squarely be attracted. In the present case the postdated c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the holder thereof is authorized to complete the incomplete negotiable instrument. In that view of the matter, all further issues that may be raised by the petitioners regarding the nature and scope of the authority of the respondent to put any particular date on the cheque in question, are all matters for trial. 8. It is not as if the cheque came to be issued without any consideration whatsoever in the first place or that there was such a glaring defect in the complaint that the decision of the Trial Court to issue summons has ex facie resulted in miscarriage of justice or an abuse of the process of Court, and therefore interference under Section 482 Cr.P.C. to quash the proceedings is warranted in the interest of justice. The question whether the consideration for which the cheque was issued was ultimately satisfied or whether the cheque was wrongly sought to be encashed, are all issues that must also be decided at the trial. The Supreme Court in the case of M.M.T.C. Ltd. and Another Vs. MEDCHL Chemicals and Pharma (P) Ltd. and Another,(2002) 1 SCC 234 held as follows: 13.....the well-settled law that the power of quashing criminal proceedings should be exercised very stri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction....... While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist....... In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the drawee or the holder of the cheque in due course. 16. To sum up, in the case at hand, admittedly the cheque was given for consideration. Whether it was for timely supply of the goods as claimed by the petitioner or for guaranteeing the erection, commissioning and performance of the plant machinery as allegedly claimed by the complainant respondent, is a disputed question of fact which cannot be looked into at this stage. The respondent has tried to encash that cheque against consideration which, according to the respondent, was due to it. In addition, Section 139 of the Negotiable Instruments Act, 1881, also creates a presumption in favour of the complainant. Under the circumstances, the onus for proving otherwise lies on the petitioners and can only be discharged at the trial. Furthermore, as discussed above, merely because the cheque in question was undated at the time it was handed over does not mean that it was given without consideration. There is also nothing in law to presume that a cheque, which happens to be a negotiable instrument, must be deemed to have been drawn on the date the undated cheque was handed over. On the contrary, as per the ratio of Anil Kumar Sawh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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