TMI Blog2019 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners is that the amount of cheque represented a liability which was not due on the date of issuance of the cheque - This contention cannot be accepted as correct at this stage of the process without proper inquiry. A presumption arises from the act of issuance of cheque that it was “for the discharge in whole or in part, of” a debt or other liability and in terms of Section 139 NI Act, onus to prove facts to the contrary so as to rebut the said presumption would be of the petitioners. This Court declines to interfere at this stage in the ongoing criminal prosecution of the petitioners on the complaint of the respondent - petition dismissed. - CRL. M.C. 4377/2016 & Crl.M.A. 18257/2016 - - - Dated:- 22-1-2019 - MR. R.K. GAUBA J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Supreme Court in Union of India vs. Raman Iron Foundry, AIR 1974 SC 1265; Indus Airways Pvt. Ltd. Ors. vs. Magnum Aviation Pvt. Ltd. Anr. (2014) 12 SCC 539 and of a learned single Judge of this court in Collage Culture Ors. vs. Apparel Export Promotion Council (2007) SCC Online Del 1407 . The petition is resisted by the respondent. 2. Having heard both sides at length and having gone through the record, this Court finds that the petitioners at best raise questions of fact mixed with questions of law which cannot be examined or effectively addressed in the limited jurisdiction under Section 482 Cr.P.C., it being desirable that the same be left to be adjudicated upon on the basis of formal evidence led by both sides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of fitting out . The first petitioner (lessee) also agreed to pay security deposit in the total sum of ₹ 1,6,2,00,000/-, the relevant clauses in that regard in the lease deed reading thus:- 7.1 The Lessee has paid to the Lessor twelve months Rent amounting to ₹ 1,62,00,000/- (Rupees One Crore Sixty Two Lakhs Only) as a security deposit (the Security Deposit ) in the following manner: 7.1.1 ₹ 81,00, 000/- (Rupees Eighty One Lakhs only) simultaneously with execution of this Lease by cheque no. 821403 821423 dated 04.09.2012 and 08.10.2012 respectively both drawn on HDFC Bank, Suryakiran Building, KG Marg, New Delhi; 7.1.2 and balance ₹ 81,00,000/- (Rupees Eighty One Lakhs only) by way of a post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. Some differences arose between the parties, and the lessee (the first petitioner) chose to opt out and bring premature termination of the lease contract. It issued notice dated 03.10.2013 to such effect to the lessor, the latter joining issue by reply dated 21.10.2013, declining, inter alia, to return the above-mentioned cheque and instead demanding payment, inter alia, of damages under the lease terms. It is undisputed that the lessee (the first petitioner) vacated the leased premises on 31.10.2013 which was taken over by the lessor (the respondent complainant), the dispute over claims and counter claims of both parties persisting. 7. Against the above backdrop, the afore-mentioned cheque dated 01.02.2014 was presented for payment b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Ors (supra) does not aid and assist the petitioners in raising a defence at this stage of the inquiry for the simple reason unlike the facts of that case involving advance payment for sale of goods, the cheque in question here was issued for payment of security deposit, liability in which regard had been acknowledged at the threshold under the lease terms, the cheque representing deferred instalment of an amount which was due at the time of execution that was declared to be due and payable at the time of execution of the lease contract. For these reasons precisely, the decision in Collage Culture Ors (supra) rather negates the argument of the petitioners inasmuch as the issuance of the post-dated cheque here concerned an a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
