9911796707
TMI Blog2022 (11) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... issued a cheque amounting to Rs.20,83,000/- in favour of respondent/complainant as part payment against the transfer of share of respondent/complainant in his favour as per terms and condition of the agreement. The said cheque was presented for encashment in the Bank on 16.3.2020, which was dishonoured due to insufficient fund and was returned to the respondent/complainant on the same day. Thereafter, a notice was issued for payment of amount of cheque, but despite service of notice, neither the cheque was honoured nor amount was paid to the complainant. Thereafter, respondent/complainant filed complaint case in the Court of Judicial Magistrate First Class, Korba, which was registered against the petitioner and after service of summons, he made his appearance in the aforesaid case. Thereafter, instant petition was filed seeking relief, as has been stated in preceding paragraphs. 3.Learned counsel appearing for the petitioner would submit that, although subject cheque was issued in respect of agreement executed between the parties/partners but a bare perusal of the agreement makes it clear, that obligation of both the parties were reciprocal in nature, as the obligation of one was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be relatable to an enforceable liability or debt, and as on the date of the issuing of the cheque there was no existing liability in the sense that the title in the property had not passed on to the accused since the goods were not delivered......" 5.Reliance is also made by learned counsel for the petitioner in the case of Shanku Concretes (P) Ltd. v. State of Gujarat 2000 Cri LJ 1988 (Guj), wherein it has been held that to attract Section 138 of the NI Act, there must be subsisting liability of debts on the date when the cheque was delivered. The very fact that the payment was agreed to some future date and there was no debt or liability on the date of delivery of the cheques would take the case out of the purview of Section 138 of the NI Act. In the aforesaid case, the Gujarat High Court followed a decision of the Madras High Court in the matter of Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd. (1999) 1 CTC 6 (Mad). While arguing the case, learned counsel for the petitioner also referred the judgments of the Supreme Court in the cases of Indus Airways Private Limited and others v. Magnum Aviation Private Limited and another (2014) 12 SCC 539 ; Sunil Todi and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant against transfer of their share in his favour, which was said to be dishonoured by the Bank and despite service of legal notice, amount of cheque was not paid by the petitioner, thus, all the necessary ingredients under Section 138 of the NI Act are attracted against the petitioner in the instant case. 9.A perusal of the said agreement would also show that for transfer of shares of respondent (party No. 1), Rs.7,62,00,000/- was to be paid by petitioner (party No. 2), out of which Rs. 5,00,00,000/- had been paid by taking loan from the Bank and for remaining amount of Rs.2,62,00,000/-, various cheques including subject cheque was given as a security of the said amount. As per agreement, aforesaid remaining amount i.e. Rs.2,62,00,000/- was to be paid by petitioner (party No. 2) to respondent (party No. 1) till 31.12.2019 alongwith agreed rate of interest. It was also agreed by both the parties that if the amount was not paid within the stipulated period i.e. 31.12.2019, then, party No. 1 will be entitled to encash the cheque given to them as security. Since the petitioner (party No. 2) could not pay the remaining amount i.e. Rs. 2,62,00,000/- with interest to respondent ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , their Lordships of the Supreme Court have held that though agreement to sell does not create interest in immovable property, however it constitutes enforceable contract between parties, therefore, cheques issued under and in pursuance to agreement to sell is payment made in pursuance of legally enforceable debt or liability. 13.In the case of M/s. Womb Laboratories Pvt. Ltd. (supra), their Lordships of the Supreme Court have held as under :- " 5.In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques." 14.In the case of Rajeshbhai Muljibhai Patel and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow. 18. When a cheque is issued and is treated as 'security' towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as 'security' cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, offence under Section 138 of the NI Act is not attracted against the petitioner, is not in accordance with law laid down by Hon'ble Apex Court in afore-cited cases. 17.So far as contention of learned counsel for the petitioner that the obligation of both the parties were reciprocal in nature and there was no subsisting liability on the date of issuance of cheque is concerned, the same is also not acceptable because maximum part of the agreement was complied with by petitioner (party No. 2) and Rs. 5,00,00,000/- had already been paid and it has also been stated that out of remaining amount of Rs.2,62,00,000/-, a sum of Rs. 1,18,00,000/- has also been paid. Although, condition No. 8 of the agreement stipulates that if party No. 2 fails in payment of the amount, then the party No. 1 will be reinstated automatically as partner, subject to refund of the entire amount paid by the party No. 2 to the party No. 1, but this contention does not absolve liability of the petitioner from the offence under Section 138 of the NI Act, as that condition specifically speaks that respondent's position can be reinstated only when she will refund the amount paid by petitioner (party No. 2). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an un-merited advantage in the criminal process. Also because of the legal presumption, when the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption." 20.In the instant case also, objection/grounds raised by petitioner, registering the complaint case under Section 138 of the NI Act against him are grounds of his defence, which are required to be proved by him before the learned trial Court by adducing evidence. If those grounds are allowed to be entertained at this interlocutory stage, then it will amount to grant the petitioner/accused unmerited advantage. 21.As a fallout and consequence of the aforesaid discussion, the petition under Section 482 of the Cr.P.C., being devoid of substance, is liable to be and is hereby dismissed. 22. However, it is made clear that, observations ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
