TMI Blog2019 (5) TMI 1753X X X X Extracts X X X X X X X X Extracts X X X X ..... hole or in part, of any debt or other liability. The complainant is entitled to take advantage of this statutory presumption. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. At this stage, the Court could not go into the merits and come to a conclusion that there was no existing debt or liability. At the initial stage of the proceedings, the High Court is not justified in entertaining and accepting a plea that there was no debt or liability. In the instant case, the complaint contains averments with regard to all the aspects mentioned in section 138. It has also been found that Annexure-I notice meets t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forming him of the dishonour of the cheque. The accused received the notice on 17.12.2014. He did not pay the amount of ₹ 35,00,000/- due to the complainant as per the cheque. The accused sent a reply notice containing false averments. 3. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the second respondent. 4. Learned counsel for the petitioner contended that no demand for payment of the amount of the cheque was made by the complainant as per the notice (Annexure-I) sent by him under clause (b) of the proviso to Section 138 of the Act and therefore, the notice is defective and the proceedings initiated against the petitioner pursuant to such notice cannot be sustained. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation by him from the bank regarding the return of the cheque as unpaid. 7. A plain reading of clause (b) of the proviso to Section 138 of the Act would indicate that the payee or the holder in due course of the cheque should make a demand for the payment of the amount covered by the cheque 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. What is required is a demand in writing by giving a notice to the drawer of the cheque of the amount covered by the cheque. The statutory provision indicates in unmistakable terms as to what should be clearly indicated in the notice and what manner of demand it should make. Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner is legally bound to pay the amount of ₹ 35,00,000/- (Rupees Thirty five lakhs only) to the complainant within 15 days from the date of the notice. In my opinion, it amounts to a clear demand as required under Clause (b) of the proviso to Section 138 of the Act. 10. Learned counsel for the petitioner has relied upon the decision of the Hon'ble Supreme Court in Suman Sethi v. Ajay : AIR 2000 SC 828 to buttress his contention that Annexure-I notice does not meet with the requirement under Clause (b) of the proviso to Section 138 of the Act. It has been held in this decision that the legislature intended that in a notice under clause (b) of the proviso to Section 138 of the Act, demand has to be made for the cheque amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. The complainant is entitled to take advantage of this statutory presumption. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. At this stage, the Court could not go into the merits and come to a conclusion that there was no existing debt or liability. At the initial stage of the proceedings, the High Court is not justified in entertaining and accepting a plea that there was no debt or liability (See M.M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering the prayer for quashing a complaint cannot adjudicate upon disputed questions of fact (See Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited : AIR 2008 SC 1683, HMT Watches Ltd. v. M. A. Abida: (2015) 11 SCC 776 and Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Limited : AIR 2016 SC 4363). 16. The prosecution for an offence under Section 138 of the Act is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations on the following aspects: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
