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2017 (7) TMI 545

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..... the trial. In the instant petition both the aforesaid facts are emerging as a question of facts and law which unequivocally are giving rise to a mixed question of facts and law which is to be determined during due course of trial. Therefore, invocation of inherent jurisdiction of this Court under Section 482 Cr.P.C. is unwarranted at this stage. - CRL.M.C. 3744/2016 and Crl.M.A.No.15652/2016 - - - Dated:- 3-7-2017 - I. S. Mehta, J. For the Petitioner : Mr,Akhil Sibal, Sr. Advocate with Mr.Jasmeet Singh and Mr.Saurabh Tiwari, Advocates For the Respondents : Mr.Sacchin Puri, Sr. Advocate with Ms.Namitha Mathews, Advocate ORDER 1. Instant is a petition under Section 482 Cr.P.C. for quashing the summoning order dated 30.07.2016 passed by the learned Metropolitan Magistrate, South East, New Delhi in C.C. No. 1813/2016. 2. The brief facts stated are that the respondent/complainant company, i.e., Splendor Landbase Ltd., filed a complaint under Sections 138/141/142 of the Negotiable Instruments Act, 1881 against the present petitioners. 3. The petitioner/Company entered into an agreement [Joint Venture Agreement(JVA)] dated 23.03.2007 with the respondent/com .....

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..... 5. 072690 30.09.2009 ₹ 1,00,00,000/- Punjab National Bank 6. 072691 15.10.2009 ₹ 75,00,000/- Punjab National Bank 7. 072791 30.12.2009 ₹ 1,50,00,000/- Punjab National Bank Total ₹ 6,50,00,000/- 5. Thereafter, when the respondent/complainant out of the aforesaid seven cheques presented the three cheques, i.e. cheques Nos. 072696, 072686 and 072687, to the bank for encashment the same got dishonoured. Intimation to this effect was sent to the petitioners vide letter dated 10.02.2011 and the petitioners vide letter dated 15.02.2011 issued fresh four post dated cheques collectively amounting to ₹ 3,25,00,000/-. The details of the said four post dated cheques are as under:- S. No. Cheque No. Dated Amoun .....

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..... Nos. 440712 of ₹ 25,00,000/- and 440713 of ₹ 75,00,000/- both drawn on Oriental Bank of Commerce, A-30-33, First Floor, Connaught Place, New Delhi which were handed over to the respondent/complainant. On 20.02.2016 the respondent/complainant presented the said cheques but the same were dishonoured vide return memo dated 23.02.2016 with remarks Insufficient Funds . 8. Consequently, the respondent/complainant company issued legal demand notices dated 23.03.2016 which was duly served upon the petitioner(s). The petitioner(s) replied to the said legal demand notice on 11.04.2016. However, when the petitioner(s) failed to make the payment despite expiry of 15 days notice period, the respondent/complainant company was constrained to file the present complaint resulting into the instant summoning order dated 30.07.2016 qua against the petitioners. Hence, the present petitions. 9. The learned Senior counsel for the petitioners has submitted that in the instant petition the cheques issued are time barred which does not come under the preview of Section 138 NI Act therefore, the summoning order dated 30.07.2016 is bad ab initio. 10. On the contrary the learned Senior .....

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..... . The object of Chapter XVII of the NI Act is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques. Reliance is placed on the judgment of the Apex Court in the case Modi Cements Ltd. vs. Kuchil Kumar Nandi; (1998) 3 SCC 249. 15. Section 138 of the Negotiable Instruments, Act 1881 is reproduce as under: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. -Where any cheque drawn by a person on an account 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 shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or w .....

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..... ection 20 in The Negotiable Instruments Act, 1881 20. Inchoate stamped instruments.-Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 1[India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. 18. Bare perusal of Section 20 of the NI Act shows that there is a presumption that a person signing on the cheque(inchoate stamped instrument) shall be responsible for its encashment on presentation and such person thereby gives prima facie authority to the holder thereof to make or complete as the case may be upon .....

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..... cused Nos. 1 to 3 again acknowledged the outstanding amounts and requested that the Complainant fill in the date as 19.02.2016 on the undated cheques bearing number 440712 amounting to ₹ 25,00,000/- (Rupees Twenty ve Lacs only) and Cheque No. 440713 of ₹ 75,00,000/-(Rupees Seventy Five Lacs only both drawn on Oriental Bank of Commerce, A-30-33, First Floor, Connaught Place, New Delhi which were handed over to the Complainant. That the Complainant accordingly filled the date of 19.02.2016 on the said cheques and presented the same with its banker HDFC k Ltd., Jasola Vihar, New Delhi on 20.02.2016. However, both the said cheques were dishonored and returned with remarks Insufficient Funds vide memo dated 23.02.2016 which were received by the Complainant on 27.02.2013. Copy of Cheque No. 440712 of ₹ 25,00,000/- and Cheque No. 440713 of ₹ 75,00,000/- alongwith cheque return memo are annexed herewith and marked Annexure-C9 'Colly' . (Underlining Supplied) 23. In response to that the petitioners had claimed that the claim of the respondent/complainant is barred by law of limitation and has relied on the judgments:- i. Vijay Polymers Pvt. Ltd. .....

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..... ction 52 IPC is reproduced as under:- 52. Good faith .-Nothing is said to be done or believed in good faith which is done or believed without due care and attention. 27. The act of due care and attention is to be acted by a person who is acting in good faith and he has reason to act so in good faith. Simple belief or actual belief by itself is not enough. Instant is a petition under the Code of Criminal Procedure and Section 52 IPC puts the burden on the petitioner to show that whether the cheques issued were without acknowledging its liability under the aforesaid agreement. Mere escaping the liability by using the word good faith is not enough. 28. The factum of issuance of the aforesaid cheques in good faith without acknowledgment of its liability in the instant petition lies on the petitioner which will be determined during the trial. The petitioner cannot escape its liability under Section 52 IPC by mere saying that the cheques issued were in good faith only. The determination of good faith of issuance of cheques with acknowledgement of outstanding liability remains to be determined during the trial. Reliance is placed on the judgment of the Apex Court in Harbha .....

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