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2017 (7) TMI 544 - DELHI HIGH COURT

2017 (7) TMI 544 - DELHI HIGH COURT - TMI - Cheques dishonored - Held that:- There was an existing liability qua against the petitioner under Section 138 of NI Act and the Apex Court in the case Kusum Ingots & Alloys Ltd. vs. Pennar Peterson Securities Ltd. And Others (2000 (2) TMI 724 - SUPREME COURT OF INDIA) has specifically stated that if the ingredients are satisfied by the complainant then the person who has drawn the cheque shall be deemed to have committed an offence. - The six chequ .....

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is not convincing as there is no plea on record to suggest that the cheques were issued on the same day/time/place/date and were undated which have been misused by the respondent/complainant-Bank by putting different dates on the cheques. - The cheques issued are of different dates and the legal demand notices issued by the respondent/complainant-Bank are of different dates constituting separate cause of action. Mere availing of the OCC/OD limit of ₹ 50,00,000/- does not ipso facto su .....

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on rather constitute separate cause of action. - CRL.REV.P. 262, 263 , 264/2017 - Dated:- 3-7-2017 - I. S. Mehta, J. For the Petitioner : Mr. Jatan Singh and Mr. Pawan Madhukar, Advocates For the Respondents : Ms. Seema Gupta, Advocates Mr. Izhar Ahmad, APP for State. JUDGMENT I. S. Mehta, J. 1. Instant revision petitions are preferred by the petitioner, i.e. Sanjay Kumar Basoya, under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. for setting aside the separate impugned judgments dated .....

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. 2. The brief facts as alleged in the complaints filed under Section 138 of the Negotiable Instruments Act, 1881 by the respondent/complainant-Bank are that the petitioner had availed the OCC/OD limit of ₹ 50,00,000/- (Rupees Fifty Lakhs Only) from the respondent/complainant-Bank since the year 2005. It is further alleged that the petitioner failed to adhere to the financial disciple and the loan were classified as NPA. Thereafter, the petitioner approached the respondent/complainant-Bank .....

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s 20.06.2007 2. 092830 ₹ 2,50,000/- 27.05.2007 12.06.2007 insufficient funds 20.06.2007 In CC. No. 535338/2016 3. 092829 ₹ 5,00,000/- 28.04.2007 25.07.2007 insufficient funds 02.08.2007 4. 092828 ₹ 2,50,000/- 27.04.2007 25.07.2007 insufficient funds 02.08.2007 5. 092832 ₹ 2,50,000/- 24.04.2007 25.07.2007 insufficient funds 02.08.2007 In CC. No. 535342/2016 6. 092833 ₹ 5,00,000/- 30.07.2007 31.07.2007 insufficient funds 02.08.2007 3. It is further alleged in the comp .....

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ainst the petitioner. 4. Subsequently, the learned Metropolitan Magistrate in each complaint case vide separate judgments dated 26.11.2016 convicted the petitioner for the offence committed under Section 138 of NI Act and vide separate orders on sentence dated 20.02.2017 sentenced the petitioner to undergo simple imprisonment for a period of six months in each complaint case and directed the petitioner to pay a compensation of ₹ 1,00,000/-(One Lakh Only) to the respondent/complainant-Bank .....

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de separate judgments dated 28.03.2017 modified the substantive sentence of imprisonment by reducing the simple imprisonment for a period of six months to a period of three months in each complaint case. Hence the present petitions. 6. The learned counsel for the petitioner has submitted that whether a statutory appeal filed without challenging the conviction order can be disposed of by the appellate Court only on the point of substantive sentence of imprisonment and whether an appeal being a st .....

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tween the same parties under single loan transaction and not concurrently. Reliance is placed on the following judgments:- 1) Lalit Kumar Sharma and Another vs. State of Uttar Pradesh and Another; (2008) 5 SCC 638. 2) V.K. Bansal vs. State of Haryana and Another; (2013) 7 SCC 211. 3) Benson vs. State of Kerala; MANU/SC/177/2016. 4) Shyam Pal vs. Dayawati Besoya and Ors.; MANU/SC/1363/2016. 5) Pankaj Kumar vs. Sunil Kumar Vaid; MANU/DE/3252/2011. 6) Thakur Arora vs. The State NCT of Delhi and Anr .....

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earing an appeal against conviction to decide the said appeal on merits but in the present case the learned appellate Court ignored this vital aspect of law and went ahead in deciding the appeal only on the point of substantive sentence of imprisonment therefore it is bad in law and liable to be set aside. Reliance is placed on the judgment of the Hon'ble Supreme Court in case Kalu Ram and Anr. vs. State of Delhi; MANU/SC/8201/2006 and judgment of the Calcutta High Court in case Nanilal Samn .....

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conviction passed by the trial Court in the appeal. 11. The learned counsel for the respondent/complainant-Bank has further submitted that the contention of the learned counsel for the petitioner that the sentence should run concurrently and not consecutively is also not maintainable as the petitioner had committed separate and distinct offence and was rightly punished separately for each offence by the trial Court. 12. The learned counsel for the respondent/complainant-Bank has further submitt .....

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. 13. The learned counsel for the respondent/complainant-Bank has further submitted that the respondent/complainant-Bank had established its case against the petitioner under Section 138 NI Act beyond doubt whereas the petitioner has even failed to rebut the presumption in favour respondent/complainant-Bank. The petitioner has admitted the cheques in question, the dishonor of cheques are a matter of record, service of legal notices were effected on the petitioner which he has admitted in the cro .....

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llate Court therefore, the present revision petitions are liable to be dismissed for want of any merit. Reliance is placed of the judgments of the Hon'ble Supreme Court in the cases A.K. Vijaya Kumar vs. R. Mohan; MANU/SC/0520/2012 and Sampelly Satyanarayana Rao vs. Indian Renewable Energy Agency Ltd.; MANU/SC/1021/2016. 14. The instant petitions are arising out of the impugned judgment passed in the following appeals:- i. Criminal Appeal No. 24/2017 ii. Criminal Appeal No. 23/2017 iii. Crim .....

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owing ingredients for taking cognizance under Section 138 of the NI Act:- " (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn of within the period of its validity whichever is earlier; (iii) that cheque is returned by .....

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the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;" 16. In the instant case the respondent/complainant-Bank had filed three complaint cases against the petitioner for the offence committed under Sections 138 NI Act on 19.09.2007. The learned Metropolitan Magistrate relying upon the complaints which were supported with affidavits, documen .....

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rthermore, the argument of the learned counsel for the petitioner that the cheques issued were given under a proposal for settlement and reliance on the judgments Lalit Kumar Sharma (supra), V.K. Bansal (supra), Benson (supra), Shyam Pal (supra), Pankaj Kumar (supra), Thakur Arora (supra) and Nusun Genetic Research Ltd. (supra) is not convincing as in the instant case the cheques issued by the petitioner were in consequence of the OCC/OD limit of ₹ 50,00,000/- availed by the petitioner fro .....

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count maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and .....

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f the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanat .....

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ipal of loan amount in accordance with agreed repayment Schedule and installments of interest payable thereon. 9. Reference may now be made to the decision of this Court in Indus Airways Private Limited v. Magnum Aviation Private Limited MANU/SC/0288/2014 : (2014) 12 SCC 539, on which strong reliance has been placed by learned Counsel for the Appellant. The question therein was whether post-dated cheque issued by way of advance payment for a purchase order could be considered for discharge of le .....

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considered as discharge of any subsisting liability. View to this effect of the Andhra Pradesh High Court in Swastik Coaters (P) Ltd. v. Deepak Bros. (1997) Crl. LJ 1942 (AP), Madras High Court in Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd. (1999) 1 CTC 6 (Mad), Gujarat High Court in Shanku Concretes (P) Ltd. v. State of Gujarat (2000) Crl LJ 1988 (Guj) and Kerala High Court in Supply House v. Ullas (2006) Crl. LJ 4330 (Ker) was held to be correct view as against the view of Del .....

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the Act. We are of the view that the question whether a post-dated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise. 11. Reference to the facts of the present case clearly shows that though the word "security" is used in Clause 3.1(iii) of the agreement, the said expression refers to the cheques .....

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lity. 12. Judgment in Indus Airways (supra) is clearly distinguishable. As already noted, it was held therein that liability arising out of claim for breach of contract Under Section 138, which arises on account of dishonour of cheque issued was not by itself at par with criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour of cheque issued for discharge of later liability is clearly covered by the statute in question. Admittedly, on the date .....

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of present nature where the cheque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment of installments was also described as "security" in the loan agreement. In applying the judgment in Indus Airways (supra), one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque. 13. .....

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as not handed over with the intention of discharging the subsisting liability or debt. There is, thus, no similarity in the facts of that case simply because in that case also loan was advanced. It was noticed specifically therein-as was the admitted case of the parties-that the cheque was issued as "security" for the advance and was not intended to be in discharge of the liability, as in the present case. 15. In HMT Watches Ltd. v. M.A. Abida (2015) 11 SCC 776, relied upon on behalf o .....

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not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition Under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admit .....

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mplainant before it. 11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. [MANU/SC/7050/2008 : (2008) 13 SCC 678], this Court has made the following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction Under Section 482 of the Code of Criminal Procedure: (SCC pp. 685-87, paras 17 & 22) 17. The parameters of jurisdiction of the High Court in exercising its jurisdiction Under Section 482 of the Code of Criminal Procedure is now well .....

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achable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to f .....

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expressed its views on this point as under: (SCC p. 93, para 12) 12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the Respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date .....

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aling with a quashing petition, the Court has ordinarily to proceed on the basis of averments in the complaint. The defence of the accused cannot be considered at this stage. The court considering the prayer for quashing does not adjudicate upon a disputed question of fact. 18. In Rangappa v. Sri Mohan MANU/SC/0376/2010 : (2010) 11 SCC 441, this Court held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the c .....

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ility is covered by Section 138 of the Act, as rightly held by the High Court." 19. In the instant case:- 1) the petitioner had issued six cheques, i.e. cheque no. 092831 of ₹ 2,50,000/- on 29.05.2007, cheque no. 092830 of ₹ 2,50,000/- on 27.05.2007, cheque no. 092829 of ₹ 5,00,000/- on 28.04.2007, cheque no. 092828 of ₹ 2,50,000/- on 27.04.2007, cheque no. 092832 of ₹ 2,50,000/- on 24.04.2007 and cheque no. 092833 of ₹ 5,00,000/- on 30.07.2007, in favour .....

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₹ 2,50,000/- and cheque no. 092832 of ₹ 2,50,000/- and 31.07.2007 in cheque no. 092833 of ₹ 5,00,000/-; 4) the respondent/complainant-Bank had sent legal notices dated 20.06.2007 for cheque no. 092831 of ₹ 2,50,000/- and cheque no. 092830 of ₹ 2,50,000/-, 02.08.2007 for cheque no. 092829 of ₹ 5,00,000/-, cheque no. 092828 of ₹ 2,50,000/- and cheque no. 092832 of ₹ 2,50,000/- and 02.08.2007 for cheque no. 092833 of ₹ 5,00,000/-; to the petiti .....

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s an existing liability qua against the petitioner under Section 138 of NI Act and the Apex Court in the case Kusum Ingots & Alloys Ltd. vs. Pennar Peterson Securities Ltd. And Others; (2000) 2 SCC 745 has specifically stated that if the ingredients are satisfied by the complainant then the person who has drawn the cheque shall be deemed to have committed an offence and the relevant para is reproduced as under:- "11. If the aforementioned ingredients are satisfied then the person who ha .....

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377; 2,50,000/- and cheque no. 092833 of ₹ 5,00,000/-, were issued by the petitioner for repayment of the outstanding dues which were arising from the continuous liability qua against the petitioner from the OCC/OD limit of ₹ 50,00,000/- availed by him. In C.C.No. 535341/16 the cheques were dishonoured vide return memos dated 12.06.2007 with a remark 'insufficient funds' and the legal demand notices were issued on 20.06.2007, in C.C.No. 535338/16 the cheques were dishonoured .....

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s made by the petitioner within the stipulated period or subsequent period till date which attracts conviction under Section 138 of the Negotiable Instruments, Act, 1881. 22. The aforesaid six cheques issued by the petitioner to the respondent/complainant-Bank were to meet their liability for the OCC/OD limit of ₹ 50,00,000/- availed by him and the contention of the learned counsel for the petitioner that the it forms part of one single transaction giving rise to one cause of action and th .....

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legal demand notices issued by the respondent/complainant-Bank are of different dates constituting separate cause of action. Mere availing of the OCC/OD limit of ₹ 50,00,000/- does not ipso facto suggest that the offence committed is one. Whereas, the cheques issued on the different dates constitute different cause of action under Negotiable Instruments Act. 24. The trial Court correctly awarded substantive sentence to run consecutively rather than to award the sentence concurrently altho .....

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fault of payment of fine as is authorised by law: Provided that the term- (a) is not in excess of the powers of the Magistrate under section 29; (b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. (2) The imprisonment awarded under this section may be in addition to a substant .....

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itan Magistrate could have awarded. 27. The trial Court while awarding the sentence and fine as compensation under Section 357(3) of the Cr.P.C. could have increased the fine amount twice the cheque amount under Section 138 of the N.I. Act, whereas the learned Metropolitan Magistrate has awarded the compensation of only ₹ 1 lakhs in each complaint cases which shows nothing biased/adverse qua against the petitioner exist in the factual parametric of the present revision petitions. The Apex .....

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ent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence: Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for .....

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