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2019 (10) TMI 362

..... had closed in the year 2017 and they had informed the respondent of the same and in as much as there was no cheque drawn by the petitioner on an account maintained by them, the complaint of the respondent is not maintainable. HELD THAT:- The aspect of the closure of the bank account of the petitioner prior to the issuance of the cheque, is a matter which cannot be determined without trial and thus, it is held that there is no infirmity in the impugned order dated 01.05.2019 of the learned MM-04, (NI Act) NDD/PHC, New Delhi District in CC No.6337/2019, whereby the cognizance of the alleged commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 has been taken only against the petitioner no.2 herein. Petition dismissed. - CRL.M.C.4698/2019 & CRL.M.A.36045/2019 - 10-10-2019 - MS. ANU MALHOTRA J. Petitioners Through: Mr. Rizwan, Advocate. Respondent Through: Mr. Rohan Jaitley & Mr. Akshay Sharma, Advocates. JUDGMENT ANU MALHOTRA, J. 1. The petitioner no.1 M/s Goutam Shoe Store through its signatory Goutam Dutt arrayed as the petitioner nos. 1 & 2 respectively, vide the present petition seek the quashing of the Complaint Case No.6337/2019 a .....

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..... s of accounts on FIFO (First In-First Out) basis, as per the payments received from the accused from time-to-time. The Complainant has filed the copies of the customer ledger, customer information form, unpaid invoice and the GR receipt of the goods supplied to the Accused, wherein the Accused has acknowledged the receipt of goods. 4. That pursuant to the written communication dated 31.10.2018, addressed by the Complainant to the Accused No.1, inter-alia demanding the overdue outstanding amount, the Accused towards the discharge of his liability issued a post dated Cheque bearing No. 000011 dated 13.03.2019 for ₹ 7,67,472.21 (Seven Lakh Sixty Seven Thousand Four Hundred Seventy Two Rupees and Twenty one Paisa only) drawn on Bank of Baroda, Coochbehar Branch, West Bengal-736101, in favour of the complainant for the payment of the said amount. 5. That while issuing the aforesaid Cheque bearing No. 000011 dated 13.03.2019 for R.7,67,472.21 (Seven lakh Sixty Seven Thousand Four Hundred Seventy Two Rupees and Twenty one Paisa only), the accused assured and represented to the complainant that the said Cheque was good for realization and the same shall be honoured on its presentatio .....

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..... re, the Accused No,2 is liable under Section 138 r/w Section 142 of Negotiable Instrument Act, 1881 and under section 420 of IPC as the Accused No. 2 is the sole proprietor of Accused No. 1 namely M/s Goutam Shoe Store and is in charge and responsible for the day to day business of the said M/s Goutam Shoe Store and has represented and assured that he shall honour the liability against the Complainant, but failed to do so while knowing in advance that the Cheque in question will be dishonoured. 6. The petitioners have contended that the complaint filed by the complainant/ respondent is not maintainable as the necessary elements required for constitution of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 are not brought forth in the instant case, in as much Section 138 of the Negotiable Instruments Act, 1881 requires the existence of a bank account and maintenance thereof at the time of the issuance of a cheque by any person, which cheque needs to be dishonoured on account of insufficiency of funds or it requires the amount of the cheque to be in excess of the amount arranged to be paid from that account, to make a person culpable for the commission .....

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..... le Supreme Court in Bir Singh Vs. Mukesh Kumar (2019) 4 SCC 197 with specific reliance on the observations in Para 32, 33, 34, 35, 36 & 37 of the said verdict which read to the effect:- 32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post-dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank chequ .....

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..... ance on the observation in paragraph 7 thereof, which reads to the effect:- 7. The bank which returned the cheques unpaid had made it clear that the accounts had been blocked. It is clear that the complainant itself was aware that the accounts had been frozen in terms of directions by some statutory authority. In these circumstances, the reasons for return of the cheques unpaid being not what is envisaged in Section 138 of the N.I. Act, these petitions are devoid of merit and, therefore, dismissed. , and reliance also placed on behalf of the petitioners on the verdict of the Hon ble Supreme Court in Jugesh Sehgal Vs. Shamsher Singh Gogi (supra) with specific reliance on the observations in paragraph 13 thereof, which reads to the effect:- 13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled: (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; (ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has been presented to .....

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..... oney are still dues in the market. In this circumstances, I am in a great trouble. Your hasty decision has mined my business. Now, I would like to request either you withdraw the rest amount of stocks in my stores or settle the matter in an honorable way. which also makes no mention of the petitioners having closed the account from which the cheque bearing no.000011 dated 13.03.2019 for a sum of ₹ 7,67,472.21/- was issued. 14. As regards the contention that has been raised on behalf of the petitioners that the said cheque was subsequently filled in by the respondent though the account was closed in the year 2017, the same is apparently an aspect which cannot be determined without trial, though the bank return memo dated 15.03.2019 indicates that the cheque bearing no.000011 for a sum of ₹ 7,67,472.21/- was returned on 15.03.2019 as the account in the HDFC Bank was closed, the said bank return memo also does not indicate when the said account was closed and thus the contention raised on behalf of the petitioners that the account of the petitioners was already closed on the date 13.03.2019, the date of the issuance of the cheque can only be determined on trial. 15. The ch .....

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