9911796707
TMI Blog2023 (10) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... oan facility on 31.03.2017 vide loan account/agreement number 19564356, for Rs. 1,50,00,000/- and upon petitioners agreeing upon specific terms and conditions, the erstwhile Capital First Ltd. had disbursed the loan amount. As stated, the petitioners had agreed to repay the loan amount together with interest in equated monthly installments. It is stated that in partial discharge of loan liability, the accused/petitioners had issued two cheques bearing no. 350 for Rs. 45,00,000/- and cheque no. 1122 for Rs. 35,00,000/- both dated 14.06.2019 and drawn on HDFC Bank. It is stated that in the meanwhile, Capital First Ltd. had amalgamated into complainant/respondent bank i.e. IDFC First Bank Ltd. vide order dated 12.12.2018 passed by Hon'ble NCLT, Chennai whereby all loans availed by borrowers including loans availed by petitioners were transferred/assigned to complainant/respondent bank. When the complainant i.e. IDFC First Bank Ltd. (erstwhile Capital First Ltd.) had presented the cheques for encashment with its banker, the same had got dishonoured vide return memo dated 14.06.2019 for the reasons 'Insufficient Funds'. Thereafter, the complainant had issued legal notice dated 10.07.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng order or quash the complaints in question. It is also stated that all necessary averments have been made in the complaints, and thus, the present petition ought to be dismissed. 5. This Court has heard arguments addressed on behalf of petitioners as well as respondent and has perused the case file. 6. At the outset, this Court deems it fit to refer to Section 138 of NI Act, which provides as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it is alleged that the petitioners and complainant had entered into a loan agreement for an amount of Rs. 1.5 crore and in discharge of partial liability, the petitioners had issued the cheques in question, which had got dishonoured upon presentation. As apparent from the records of the case, the complainant in the complaint under Section 138 of NI Act has specifically averred that the petitioners had issued the cheques in question and petitioner no. 2 was its authorised signatory, who was in control of and responsible for the conduct and affairs of accused/petitioner no. 1. 9. As far as the contentions raised on behalf of petitioners regarding cheques in question being issued as security cheques and misused at later stage are concerned, this Court is of the view that such issues can only be decided and appreciated at the stage of trial after evidence is led by both the parties, and this Court in a petition under Section 482 of Cr.P.C. cannot adjudicate upon the said issue. In this regard, this Court deems it appropriate to refer to the decision of Hon'ble Apex Court in case of Sunil Todi v. State of Gujarat 2021 SCC OnLine SC 1174, whereby it has been held as under: "29. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Such a determination should necessarily not be rendered by a Court not conducting the trial. Therefore, unless the Court is fully satisfied that the material produced would irrefutably rule out the charges and such materials being of sterling and impeccable quality, the invocation of Section 482 Cr.P.C power to quash the criminal proceedings, would be unmerited. Proceeding on this basis, verdict was given against the appellant, who was facing the proceeding under Section 138 of the N.I. Act. With all liberty given to the appellant to raise his defence in the trial court, his quashing petition came to be dismissed. 8. The issue to be answered here is whether summons and trial notice should have been quashed on the basis of factual defences. The corollary therefrom is what should be the responsibility of the quashing Court and whether it must weigh the evidence presented by the parties, at a pre-trial stage. *** 10. It is also relevant to bear in mind that the burden of proving that there is no existing debt or liability, is to be discharged in the trial. For a two judges Bench in M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd., Justice S.N. Variava made the following p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 2. Without keeping in view the statutory presumption raised under Section 139 of the NI Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in CC No. 367 of 2016 filed under Section 138 of the NI Act." *** 16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm of possibility particularly because of the legal presumption, as in this matter. What is also of note is that the factual defence without having to adduce any evidence need to be of an unimpeachable quality, so as to altogether disprove the allegations made in the complaint. 17. The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable. Quashing proceedings at preliminary stages will result in finality without the parties having had 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. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is undoubtedly destroyed; it ceases to exist. Yet, in every other sense of the term, the corporate venture continues - enfolded within the new or the existing transferee entity. In other words, the business and the adventure lives on but within a new corporate residence, i.e., the transferee company." 12. In the present case, the petitioners herein had entered into a loan agreement with the erstwhile Capital First Ltd. in March, 2017. However, in 2018, Capital First Ltd. had amalgamated with IDFC Bank Limited by virtue of amalgamation order dated 12.12.2018 passed by Hon'ble NCLT, Chennai Bench. After the amalgamation, all the loans availed by various borrowers including the loan availed by the petitioners herein was also transferred to IDFC Bank Limited, and further that all the properties, rights, liabilities and duties of Capital First Ltd. were vested in IDFC Bank Limited including all contractual liabilities owed by the present petitioners to Capital First Ltd. It has been specifically averred by the complainant that the accused/petitioners had entered into contractual relations with Capital First Ltd., and after the said amalgamation, the actionable claim including any claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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