TMI Blog2018 (1) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... law that while exercising jurisdiction under Section 482 of the Code of Criminal Procedure, the Courts should not indulge in meticulous examination of the factual aspect thereby usurping the jurisdiction of the learned Magistrate to decide the actual state of affairs. In that view of this case simply on the basis of the fact that such cheques were undated, it cannot be said that the said cheques were issued as security and without having any existing debt or liability. The application appears to be premature, if not devoid of merit and accordingly the application under Section 482 of the Code of Criminal Procedure stands dismissed. - CRR No.2681 of 2016, CRR No.2682 of 2016, CRR No.2685 of 2016 - - - Dated:- 1-12-2017 - The Hon ble Justice Debi Prosad Dey For the Appellant/ : Mr. Tirthankar Ghosh Petitioner : Mr. Satadru Lahiri : Mr. Dipendra nath Chunder For the Opposite Party No.2 : Mr. Sandipan Ganguly : Mr. Ayan Bhattacharya ORDER Debi Prosad Dey, J. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing of the proceeding being complaint case no. CS/63257 of 2016 under Section 138/141 of the Negotiable Inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appoint a subcontractor for carrying out the activities related to the development and operation of the Bicharpur Mine and extraction of the coal therefrom. Accordingly for carrying out the said activities, the contract was entered into between AMRL and JMS (complainant/opposite party herein). The complainant/opposite party further entered into contract with the Accused/petitioner no.1 and gave work orders dated 05.09.2013 for carrying out the work related to the development of the aforesaid coal block. The further case of the petitioner is that the accused/petitioners submitted bank guarantees and undated cheques to the complainant/opposite party as security. In the meantime, the Hon ble Supreme Court has ordered the cancellation of coal blocks (other than four) allocated between 1993 to 2010 including the Bicharpur Coal Block of MPSMCL. The complainant/opposite party thereafter invoked the bank guarantee and also filed criminal cases against the present petitioners with the help of that undated cheques issued by the present petitioners in favour of the complainant/opposite parties as security. The attention of the Court has been drawn in respect of clause 10 of the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were issued as security. Learned Advocate appearing on behalf of the petitioner has drawn the attention of the Court with regard to the memo of appeal, terms of contract and agreement annexed with the application. The following decisions have been referred by learned Advocate for the petitioner in support of his aforesaid contentions:- 1. (2007) 14 SCC 776 (All Cargo Movers (India) Private Limited Ors. Vs. Dhanesh Badarmal Jain Anr.) 2. (2004) 7 SCC 338 (Adalat Prasad Vs. Rooplal Jindal Ors.) 3. (2016) 1 SCC 348 (International Advanced Research Centre for Powder Metallurgy New Materials (Arci) Ors. Vs. Nimra Cerglass Technics Private Limited Anr.) 4. (2013)1 SCC 400 (Anup Sarmah Vs. Bhola Nath Sharma Ors.) 5. (2007) 13 SCC 107 (B. Suresh Yadav Vs. Sharifa Bee Anr.) 6. (2004) 13 SCC 324 (Subramanium Sethuraman Vs. State of Maharashtra Anr.) 7. (1998) 5 SCC 749 (Pepsi Foods Ltd. Anr. Vs. Special Judicial Magistrate Ors.) Learned Advocate appearing on behalf of the opposite party has however refuted the argument advanced by learned Advocate for the petitioner on the ground that in terms of Section 139 of the Negot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction on the court to act according to its whim or caprice. At this stage the Court could not have gone into merits and/or come to a conclusion that there was no existing debt or liability. There is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they had to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability. Even when the cheque is dishonoured by reason of stoppayment instructions, by virtue of Section 139 the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability. Hon ble Supreme Court in the decision reported in (2016) 9 Scale (Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Limited) has distinguished the decision reported in (2014) 12 SCC 539 (Supra) holding inter-alia that dishonor of cheque issued in discharge of later liability is clearly covered by the statute in question. It has been observed by the Hon ble Supreme Court relying on HMT Watches Ltd. Vs. M. A. Abida Anr. reported in (2015) 11 SCC 776 as follows: In HMT Watches Ltd. Vs. M.A. Abida and another, relied upon on behalf of the respondent, this Court dealt with the contention that the proceedings under Section 138 were liable to be quashed as the cheques were given as security as per defence of the accused. Negativing the contention, this Court held:- Having heard the learned counsel for the parties, we are of the view that the accused (Respondent 1) challenged the proceedings of criminal complaint cases before the High Court, taking factual defences. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable. In Rallis India Ltd. Vs. Poduru Vidya Bhushan (2011) 13 SCC 88, this Court expressed its views on this point as under: 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 the respondents ceased to be the partners of the firm. There is no denying of the fact that the satisfaction of the Magistrate can safely be challenged before the High Court in a proceeding under Section 482 of the Code of Criminal Procedure in terms of the decision of the Hon ble Supreme Court reported in (1998) 5 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
