TMI Blog2017 (9) TMI 1499X X X X Extracts X X X X X X X X Extracts X X X X ..... oner 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 summoning order is not bad. - CRL.M.C. 1681/2015 - - - Dated:- 25-9-2017 - MR. I.S. MEHTA J. Petitioner Through: Mr. Amit Bhagat, Advocate. Respondent Through: Mr. Jitender Vohra and Mr. N.K. Vohra, Advocates. JUDGMENT I.S. MEHTA, J. 1. Instant petition preferred by the petitioner under Section 482 Cr.P.C. is arising out of the summoning order dated 16.12.2014 passed by the learned Metropolitan Magistrate-01 (NI Act)/West, Tis Hazari Courts, Delhi in C.C. No. 2807/1/2014, for quashing the summoning order dated 16.12.2014, the criminal complaint CC. No. 2807/1/14 and all the consequential proceedings pending thereof before the Court of the learned MM-01 (NI Act)/West Delhi. 2. The brief facts stated are that the Second Party, i.e. Mrs. Honey Bhagat/petitioner herein along with her husband Mr. Rohit Bhagat and M/s R.V. Ganga Enterprises, purchased a property forming right hand side port ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r its encashment the cheque was returned unpaid/dishonoured vide return memo dated 16.02.2014 with the remarks Funds Insufficient . 7. Consequently, the respondent/complainant issued legal demand notice dated 13.03.2014 which was duly served upon the petitioner on 21.03.2014. The petitioner replied to the said legal demand notice vide reply dated 06.05.2014. However, when the petitioner failed to make the payment despite expiry of 15 days notice period, the respondent/complainant was constrained to file a complaint under Section 138 read with Section 142 of the NI Act in the Court of Chief Metropolitan Magistrate, Patiala House Courts, New Delhi. However, the said complaint was returned to the respondent/complainant due to lack of jurisdiction and vide order dated 18.11.2014 the learned MM-06, Patiala House Courts, New Delhi directed filing of the said complaint in the court having territorial jurisdiction in compliance of the directions of the Hon'ble Supreme Court in the judgment titled Dashrath Rupsingh Rathod vs. State of Maharashtra Anr.; MANU/SC/0655/2014. 8. Thereafter, the respondent/complainant filed a complaint under Section 138 of the Negotiable Instrume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner herself admits that qua the existing liability she has executed the promissory note and a promissory note can only be executed only when there is an existing and subsisting liability. Furthermore, there is an unequivocal and unambiguous promise of the petitioner in the very same MOU that the petitioner shall clear of the existing liability within two months, i.e. by 31.12.2013, and it was only when the petitioner failed to clear the said subsisting and existing liability till 31.12.2012 that on 12.02.2014 the respondent presented the cheque for encashment which got dishonoured vide return memo dated 16.02.2014. 15. The learned counsel for the respondent has submitted that the contention of the learned counsel for the petitioner that the cheques (including the present cheque) were given as security is also not a valid ground in light of the judgment of the Hon'ble Supreme Court in ICDS Ltd. vs. Beena Shabeer and Another; (2002) 6 SCC 426. 16. The learned counsel for the respondent has further submitted that learned Trial Court has rightly summoned the petitioner and the present petition is not maintainable while relying on the following judgments:- i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) the payee or the holder in due course of 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. Explanation .- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. 20. The Hon'ble Supreme Court in the case of Kusum Ingots Alloys Ltd. vs. Pennar Peterson Securities Ltd. And Others; (2000) 2 SCC 745 has laid down the following 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aper 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. 25. Bare perusal of Section 20 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 it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp. The reliance is placed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarification is made that the phrase debt or other liability means a legally enforceable debt or other liability. 29. Admittedly, the cheque, i.e., cheque no. 053369 of ₹ 1,31,00,000/-(Rupees one crores thirty one lacs only), was issued by the petitioner in favour of the respondent/complainant in terms of the MOU dated 01.11.2013 which was for the purpose of making balance payment which amounts to existing liability qua the petitioner. The relevant part of the MOU dated 01.11.2013 is reproduced as under:- That the payment of ₹ 2,81,00,000/- (Rupees two crores eighty one lacs only) shall be paid by the second party to the first party within two months from the date of this Memorandum of Understanding. As security the second party has issued post-dated cheques for the balance amount to ₹ 2,81,00,000/- (Rupees two crores eighty one lacs only) to the first party, which shall be enchashed by the first party on due dates. And has also issued promissory note of the sum of ₹ 2,81,00,000/- (Rupees two crores eighty one lacs only). The details of post-dated cheques are as follows: (i) ₹ 1,50,000,00/- (Ropees One Crore Fifty Lacs only) vide Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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