TMI Blog2021 (7) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 88,355/- and the entire amount payable to the complainant-company was to the tune of 1,33,101/-. Thus, the cheque was certainly issued in discharge of the legally enforceable debt - The company having not cleared the dues of the complainant, the complainant presented the cheque which bounced twice. This Court finds that the presumption in connection with issuance of cheque that the same was issued against legally enforceable debt could not be rebutted by the petitioner and the only argument advanced by the petitioner is that there was no legally enforceable debt against the petitioner and the debt was only against his company - The present case is not related to any vicarious liability which arises when the cheque is issued by the company. In this case, the cheque is issued by the accused in his personal capacity and his specific case is that the debt was against the company and not against him. The petitioner would still be convicted even if he issues his personal cheque in discharge of the dues of the company. The learned appellate court has rightly held that petitioner being signatory of the bounced cheque is clearly responsible for non- payment of the amount to the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company, but merely because one of the employees of the company has issued the cheque from his personal account, he cannot be said to have issued the cheque in discharge of the debt of the company. Arguments on behalf of the opposite party no. 2 and State 6. Learned counsel appearing on behalf of the opposite party No. 2 has referred to para 5 and 6 of the complaint petition to submit that the impugned judgment does not call for any interference. He has further submitted that the cheque had bounced twice. He has submitted that there is no illegality or perversity in the impugned judgements and accordingly no interference is called for in revisional jurisdiction. Learned counsel appearing on behalf of the opposite party- State while opposing the prayer also does not dispute the fact that the company against whom the amount was due to the complainant was never made accused in the present case, but the petitioner had issued his personal cheque which had bounced. Findings of this court 7. The case was registered on the basis of complainant filed by M/s Eastern Travels Pvt. Ltd. It has been alleged that on 09.08.2003 accused-petitioner came to the office of the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforesaid cheque over telephone and the accused requested the complainant to present it for encashment in the last week of Jan. 2004. As per aforesaid request, the complainant again presented the Cheque but was dishonoured on 28.01.2004 due to insufficiency of funds in the account of the accused. Thereafter on 04.02.2004, the complainant sent a notice through his lawyer through registered post with A/D demanding the money covered under the cheque which returned as unclaimed on 12.02.2004 and the accused did not pay the cheque amount to the complainant. 8. The specific case of the complainant was that the accused procured the supply of railway tickets in his favour from the complainant dishonestly with fraudulent intention and did not intend to pay the same and the case was filed under Sections 420 IPC as well as Section 138 of the Negotiable Instruments Act. However, ultimately cognizance was taken and the petitioner was charged for an offence under Section 138 of the Negotiable Instrument Act only. The complaint case was filed only against the present petitioner who had issued the cheque from his personal account and the company in which he was working was not made an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce document of the accused i.e. Exhibit-A said to be personally delivered to the complainant written on 03.12.03, while the cheque was dated 06.11.2003 and in Exhibit-4 i.e. letter dated 25.11.2003 the accused-petitioner had written and requested that the cheque should be kept on hold till 06.12.2003 as he was intending to give the cheque of the company. After considering all these aspects of the matter the learned Trial Court was of the view that the prosecution has been able to prove the case under section 138 of Negotiable Instruments Act, 1881 beyond all reasonable doubts. 11. The learned Appellate Court while considering the materials on record found that the accused had admitted in his evidence that he had issued personal cheque to the complainant company. Learned Appellate Court also found that it was proved by the prosecution that the said cheque was presented in the bank for encashment which was twice dishonoured consequent upon which the complainant sent a legal notice to the accused through his lawyer, but in spite of knowledge the accused did not pay the amount to the complainant. Learned Appellate Court was of the considered view that the signatory of the bounced ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst his company. As already held above in para 12 that there is no bar in issuance of cheque for discharge of legally enforceable debt of another person, there is no merit in the arguments of the learned counsel for the petitioner that the petitioner could not have been convicted for bouncing of cheque when issued from in personal account though the dues were against the company in which he was working. 15.So far as the judgment reported in (2005) 8 SCC 89 (Supra) is concerned, the same has no applicability to the facts and circumstances of this case which relates to vicarious liability of the persons of the company under section 141 of the Negotiable Instruments Act, 1881 when the cheque is issued by the company. The present case is not related to any vicarious liability which arises when the cheque is issued by the company. In this case, the cheque is issued by the accused in his personal capacity and his specific case is that the debt was against the company and not against him. As held above, the petitioner would still be convicted even if he issues his personal cheque in discharge of the dues of the company. The learned appellate court has rightly held that petitioner be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
