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2017 (7) TMI 545 - DELHI HIGH COURT

2017 (7) TMI 545 - DELHI HIGH COURT - TMI - Issued cheques in good faith without acknowledgment of its liability - NI Act - jurisdiction of this Court under Section 482 Cr.P.C. - Held that:- 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 t .....

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The determination of good faith of issuance of cheques with acknowledgement of outstanding liability remains to be determined during 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. 3 .....

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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/complainant for construction of a residential group housing project on 10.27 acres of land situated in the village Mewla Maharajpur, Tehsil and District Faridabad, Haryana. In pursuance to the said a .....

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pondent/complainant came to know that the petitioners failed in their obligation to do the needful the petitioners issued three cheques of ₹ 1,00,00,000/- each in favour of the respondent/complainant and entered into a deed for cancellation of the said agreement on 07.05.2009. As per the Deed of Cancellation dated 07.05.2009 petitioners agreed to repay the sum of ₹ 6,00,00,000/- paid by the respondent/complainant under the said agreement dated 23.03.2007 and further agreed to pay  .....

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09 ₹ 25,00,000/- Punjab National Bank 2. 072686 07.08.2009 ₹ 1,00,00,000/- Punjab National Bank 3. 072687 22.08.2009 ₹ 1,00,00,000/- Punjab National Bank 4. 072688 10.09.2009 ₹ 1,00,00,000/- Punjab National Bank 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 .....

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₹ 75,00,000/- Punjab National Bank 2. 381877 30.05.2011 ₹ 75,00,000/- Punjab National Bank 3. 381878 30.06.2011 ₹ 75,00,000/- Punjab National Bank 4. 381879 30.07.2011 ₹ 1,00,00,000/- Punjab National Bank Total ₹ 3,25,00,000/- 6. Thereafter, the respondent/complainant presented the first post dated cheque No. 381876 of ₹ 75,00,000/- dated 30.04.2011 however, the said cheque stood dishonoured with remark "Funds Insufficient". Further on various remin .....

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ned pay order. Thereafter, the petitioner Nos.2 and 3 requested the respondent/complainant to wait for the payment of the said two cheques amounting to ₹ 1,00,00,000/- (Rupees One Crores only) as well as the earlier cheques bearing Nos. 381878 and 381879 amounting to ₹ 1,75,00,000/- (Rupees One Crores Seventy Lakhs only). When the respondent/complainant did not get the said cheques encashed amounting to a total of ₹ 2,75,00,000/- (Rupees Two Crores Seventy Five Lakhs only) , th .....

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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 p .....

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dated 30.07.2016 is bad ab initio. 10. On the contrary the learned Senior counsel for the respondent/complainant has submitted that once the cheque without filling up of the date is given to the respondent/complainant it was deemed to be filled up at the subsequent date and in the present case it was specifically authorized to do so. This presumption has to be rebutted by the petitioner(s) in the trial and all the grounds which are raised by the petitioner(s) in the present petition are disputed .....

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law and further submitted that the cheques were issued on 02.12.2011 and it is the case of the respondent/complainant that it is only in 2016 that alleged authority to put the sign was given. Consequent to that, the date put was 19.02.2016 and on that date there was no legally enforceable debt qua the petitioners therefore, the cheque in question is barred by law. Reliance is placed on the judgments Prajan Kumar Jain vs. Ravi Malhotra; 2009 (113) DRJ 275 and Vijay Polymers t. Ltd. & Anr. vs .....

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petitioners. The standard of proof in the criminal proceeding is higher than that of a civil proceeding which thus gives the platform to the creditor to run criminal as well as civil proceedings parallely. This Court has already said so in the case Sanjay Aggarwal vs. G.S. Tayal & Ors.; Crl. M.C. No. 4144/2009 decided on 11.04.2012 and reliance is also placed on the judgment of the Apex court in the case Sh. Vishnu Dutt Sharma vs. Smt. Daya Sapra, (2009) 13 SCC 729. 14. The object of Chapter .....

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er 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 oth .....

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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. Explanation.- For the purposes of this .....

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unt 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 the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank; (iv) th .....

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able Instruments Act, 1881 is reproduced as under: "Section 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 negotia .....

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ere 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 it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp. The reliance is placed on the judgment of the this Court in the case Ravi Chopra vs. State and Anr.; 2008 (102) DRJ 147. 19. The .....

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lder had the authority to fill. 20. The contention of the learned senior counsel for the petitioner that the cheques in question were of the year 2011 and by putting the date on the said cheques does not create any fresh liability qua the petitioners does not seems to be correct on the following grounds:- 1) Issuance of the cheques in question is not disputed between the parties. 2) The cheques issued were in consequence of the two agreements dated 23.03.2007 and 07.05.2009 entered between the p .....

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hat the petitioners had acknowledged the outstanding payments/liability and issued the undated cheques, i.e. Cheque No. 440712 of ₹ 25,00,000/- and Cheque No. 440713 of ₹ 75,00,000/-, and had authorised the respondent/complainant to fill in the date as 19.02.2016 on the said undated cheques which is reproduced as under :- "That the Accused have neither replied to the said legal notice nor intimated any payment schedule qua same. The representatives of the Complainant had again f .....

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rce, 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 ₹ 25,00,0 .....

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Shri Divakar Lolinenkar; 2000 (5) BOMCR 9. 24. However, the petitioner has relied on its reply dated 11.04.2016 to the notice dated 23.03.2016 of the respondent/complainant wherein the petitioners have stated that the aforesaid cheques were given to the respondent/complainant in good faith in furtherance of bonafide intent and the petitioners always intended to repay which is reproduced as under:- " 1.5 On 08.09.2011 my Clients further paid a sum of ₹ 50,00,000(Rupees fifty lakhs onl .....

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77; 25,00,000/- (Rupees twenty five lakhs only) and cheque no. 440713 for ₹ 75,00,000/- (Rupees seventy five lakhs only). From aforesaid facts it is evident thatmy Clients always intended to repay SLL." (Underlining Supplied) 25. The petitioner in his defence in the instant petition has replied that the aforementioned cheques, i.e. Cheque No. 440712 of ₹ 25,00,000/- and Cheque No. 440713 of ₹ 75,00,000/-, were issued in favour of the respondent/complainant in good faith an .....

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good faith in furtherance of their bonafide intent. 26. As per the General Clauses Act good faith means an act done in furtherance of honest belief. Whereas, under Section 52 IPC good faith means whether the act so done was with due care and attention. Section 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 wh .....

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