TMI Blog2017 (7) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Since a common question is involved in these petitions and, therefore, they are heard together and are being disposed of by a common order. For convenience, I narrate the facts from M.Cr.C. No.10979 of 2015. 3. This petition under Section 482 of the Code of Criminal Procedure Code, 1973 has been filed for quashment of order dated 11.9.2015 passed in Revision No.374 of 2014, by which the learned Revisional Court upheld the order dated 10.3.2014 passed by the Judicial Magistrate Ist Class, Indore in Criminal Case No.1312 of 2005, by which learned Judicial Magistrate Ist Class, Indore has rejected the application for quashment of proceedings under Section 138 of Negotiable Instruments Act, 1881 filed against the applicant and dismissed the revision application filed by the applicant. 4. The facts of the case are that the applicant-Sarad Gupta was the manager of the respondent M/s Madhu Brothers till 23.12.2004 at the Showroom No.2, GTB Complex, New Market, T.T. Nagar, Bhopal. The business of the non-applicant firm at this showroom was conducted by the applicant in the capacity of the manager of the firm. After 23.12.2004 the applicant was no longer the manager or employee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich were dishonored due to stop payment instructions. 9. The non-applicant filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 against the applicant. An application was filed by the applicant on 8.8.2012 before the Judicial Magistrate Ist Class, Indore claiming that the Civil Court has decided that the complainant Madhukar Gupta did not have right to get the payment of the 5 cheques. The present criminal complaint arises out of one of those 5 cheques, so the issue has been finally decided by the Civil Court, hence the present criminal matter under Section 138 of Negotiable Instruments Act should be dismissed. 10. The learned Judicial Magistrate rejected the application vide order dated 10.3.2014. The said order has been upheld by the learned Revisional Court vide order dated 11.8.2015. 11. Learned Counsel for the applicant has submitted that after 23.12.2004 a Civil Suit for declaration was filed by the applicant that complainant-Madhukar Gupta proprietor of M/s. Madhu Brothers was not entitled to encash those 5 cheques without settling the accounts of execution of MOU within four days from the date of agreement. The said Civil Suit was fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her liability in the eyes of law. He has drawn my attention to the decision of Principal Seat of this Court in the case of Jitendra Sing Flora vs. Ravikant Talwar reported in 2001 (1) M.P.L. J. 229, two decisions of the Apex Court in the case of Shanti Kumar Panda vs. Shakuntala Devi reported in (2004) 1 SCC 438 and M. S. Narayana Menon alias Mani vs. State of Kerala and another reported in 2006 (4) M.P. L.J. and prays for its quashment. 14. In the present case, a Civil Suit for declaration was decided on 23.12.2011, the criminal complaint under Section 138 of Negotiable Instruments Act, 1881 was filed on 28.5.2005 and those five cheques were dishonored on 22.2.2005. Thereafter, a Civil Suit was filed on 6.9.2005 i.e. after dishonored of cheques dated 22.2.2005. 15. To appreciate the submissions of the learned Counsel, it is necessary to consider the nature of agreement (Annexure P/1) entered into between the parties:- 16. It is well settled in law that if cheques were issued for security, then offence under Section 138 of N.I. Act is not made out. 17. It is also well settled in law that an accused can rebut the presumption of Section 139 of the Act simply by a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute that upon termination of the agreement, the amount paid to Nazimul Islam was refundable to the complainant and that Nazimul Islam had agreed to refund the same within one month. The promissory note executed by Nazimul Islam contained an unequivocal acknowledgment of not only the debt/liability aforementioned but promised to liquidate the same within one month with interest at the bank rate. Five cheques handed over were to be returned but only upon payment of the amount in question. Such being the fact situation, it cannot be said that the cheques had nothing to do with any debt or other liability. As a matter of fact, the existence of the debt or liability was never in dispute. On the contrary, it was acknowledged by Nazimul Islam who simply sought one month s time to pay up the amount. The cheques were post dated, only to give to the drawer the specified one month s time to pay the amount. There is thus a direct relationship between the liability and the cheques issued in connection therewith. Thus far there is no difficulty. The difficulty arises only because the promissory note uses the words security qua the cheques. This would ordinarily and in the context in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y analysed the factual situation and applied the law applicable to the same. 20. Recently the Apex Court in the case of Sampelly Satanarayana Rao vs. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458 has held that once loan amount was disbursed and as per agreement installments had fallen due on date of issuance of cheque, dishonour of such cheque would fall under Section 138. Such issuance of cheque undoubtedly represent outstanding liability. The Apex Court further held that Section 138 of N.I. Act is attracted, if on the date of issuance of cheque, there existed liability or debt or amount which had become legally recoverable. Issuance of cheque and admission of signature thereon would invoke presumption of legally enforceable debt in favour of holder. Accused needs to rebut such presumption. Apex Court held:- 13. Act Crucial question to determine applicability of Section 138 of the is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying Page 7pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter. *** 22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable 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 cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
