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TMI Blog2023 (9) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... inafter referred to as "the respondent no 2") filed the present complaint by alleging that the respondent no 2 gave a loan of Rs. 1,30,00,000/- (Rupees One Crore thirty Lakhs only) to the petitioner no 1 which was extended in two instalments of Rs. 70,00,000/- on 3.3.2014 vide cheque drawn on Indian Overseas Bank and Rs. 60,00,000/- on 4.3.2014 vide Cheque drawn on Indian Overseas Bank. The petitioner no 1 towards discharge of part liability issued cheque bearing no 997642 dated 01.06.2018 amounting to Rs. 50,00,000/- (rupees fifty lakhs only) drawn on State Bank of India, Bhikaji Cama Place Branch in favour of the respondent no. 2 which was got dishonoured when presented for encashment on the ground of "Payment Stopped by Drawer" vide cheque returning memo dated 22.08.2018. The petitioners did not pay the cheque amount despite the notice dated 13.09.2018 which was replied vide reply dated 26.09.2018. Hence, the respondent no. 2 filed the present complaint under section 138 of NI Act. 3. The Court of Sh. Vikram, MM-01, North, Rohini Courts, Delhi vide order dated 23.10.2018 took cognizance for the offence punishable under section 138 of NI Act and accordingly summoned the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that in September, 2014 four cheques bearing nos. 997642, 997643, 997644 and 997645 belonged to the petitioner no 1 were found to be stolen. The petitioner no 2 on behalf of the petitioner no 1 fearing misuse of undated signed blank cheques directed its banker that any payment against these cheques be stopped. The petitioner no 2 on behalf of petitioner no 1 also wrote a complaint to the Station House Officer, Police Station Mehrauli, New Delhi on 27.9.2014 informing that the four cheques bearing nos. 997642, 997643, 997644 and 997645 of State Bank of India have been stolen and said information was recorded vide NCR bearing no 1361/2014 dated 01.10.14. The petitioners no 1 and 2 were shocked after receipt of legal notice dated 28.09.2018 on behalf of Pankaj Jain, Director of M/s Host Finance and Investment Pvt. Ltd. under section 138 of NI Act wherein it was alleged that the cheque bearing no 997645 allegedly issued by the petitioner no l to the respondent company for the discharge of a debt or liability amounting to Rs. 75 lakhs deposited by respondent with J&K Bank, Branch Office at Cheeni Chowk, Anantnag, Kashmir was dishonoured by the bankers of the petitioner no l for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,00,00,000 dated 20.12.2018 and the cheque bearing no 997644 amounting to Rs. 75,00,000 dated 20.12.2018. These cheques were 2 cheques out of the 4 cheques which were missing/stolen from the office of the petitioner no 1 and regarding which NCR bearing no 1361/2014 dated 01.10.2014 was registered in PS Mehrauli and later on FIR no. 732/2018 under section 380 IPC dated 12.11.2018 against the directors of respondent no 2 i.e. Mr. Pankaj Jain and Ashok Kumar was lodged. The petitioners replied notice dated 01.01.2019 vide reply dated 12.01.2019 wherein mentioned true and correct facts. M/s. Golden Equity Pvt. Ltd. through Pankaj Jain, who is the director of respondent no. 2 filed another complaint bearing no 654/2019 before the court of M.M.-01, Rohini Courts with respect to the cheques bearing no 997643 and 997644 under section 138 of NI Act and after taking cognisance summons were issued to the present petitioners. The petitioners have challenged summoning order before this Court of Delhi in Crl. Misc. Petition bearing no 3008/2019 wherein vide order dated 30.05.2019 summoning order in the complaint bearing no 654/2019 was stayed. 4.2 The petitioners impugn complaint bearing no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is evident from the reply dated 26.09.2018 that the cheques bearing no 997642 was stolen/lost in the year 2014 from the office of the petitioner no 1 and for which a complaint was made to the SHO, PS Mehrauli on 27.09.2019 vide NCR bearing no 1361/2014 dated 01.10.2014 under section 155 of the Code regarding 4 stolen cheques including cheque basis of present complaint. The petitioner no. 1 also issued instructions of "Stop Payment" to its banker in respect of the stolen cheques. The stolen cheques do not fall under ambit of "negotiable instrument". 5.1 The High Court of Jammu & Kashmir in Writ Petition (Criminal) bearing no. 2322/2019 had directed to constitute SIT to carry out and monitor investigation in FIR bearing no 0069/2019 under sections 420/467/468 Ranbir Penal Code registered at P.S. Anantnag against the officials of respondent no 2. Pankaj Jain who is the Director of the respondent no 2 and other companies had filed the cases against the petitioners to extort money from them. The learned Senior Counsel also raised other issues during arguments. 6. The respondent no 2 filed reply to petition. 7. The Supreme Court in Kusum Ingots & Alloys Ltd. V Pennar Peterson Secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 9. The Supreme Court in Tedhi Singh V Narayan Dass Mahant, Criminal Appeal No 362 of 2022 (arising out of SLP (Crl) No. 1963 of 2019) decided on referred Basalingapa V Mudibasappa, (2019) 5 SCC 418 wherein it was observed as under:- 25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Courts, Kashmir against the petitioner no l. It is also pleaded that the High Court of Jammu and Kashmir at Srinagar vide order dated 11.12.2018 passed in Cr.M.C. no 479/2018 stayed the proceedings in the private criminal complaint no. 194/2018 and vide order dated 03.04.2019 passed in Cr.M.C. no 92/2019 stayed the proceedings in complaint case bearing no 219/2018. 11. The Supreme Court in Raj Kumar Khurana V State of (NCT of Delhi) & another, Criminal Appeal No 913 of 2009 decided on 5th May, 2009 considered issue whether return of a cheque by the bank on the ground that it was reported lost by the drawer would attract the penal provisions contained in Section 138 of the Negotiable Instruments Act, 1881. It was observed that the parameters for invoking the provisions of Section 138 of the Act being limited, the refusal on the part of the bank to honour the lost cheque would not bring the matter within the provisions of Section 138 of the Act. The Allahabad High Court in Bobby Anand @ Yogesh Anand V State of U.P. and another, Application under section 482 bearing no 7631 of 2008 decided on 17th May, 2023 after referring Raj Kumar Khurana V State of (NCT of Delhi) observe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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