2022 (4) TMI 762 - HC - Indian Laws

Dishonor of Cheque - legally enforceable debt or not - disputed cheques were given by way of security in the year 2016 or not - HELD THAT - From the record, it is clear that there was a transaction between the parties and the complainant had given the aforesaid amount, for which, it was agreed that the accused will pay interest at the rate of 12% p.a. Thus in the facts of the present case, it cannot be said that the disputed cheques have been issued for the debt, which is not legally enforceable as contended by learned advocate for the applicants. It is pertinent to note that the complainant had not given amount of ₹ 34,50,000/- for a specific period - the complainant has specifically averred in the impugned complaint that the applicant nos.2 and 3 have agreed that they will pay interest at the rate of 12% p.a. regularly and as and when the complainant requires the said amount, the said amount will be returned immediately by the accused persons. In the impugned complaint, specific averments and allegations are leveled against the applicant nos.2 and 3, who are partners of the applicant no.1 partnership firm. It is not in dispute that the disputed cheques have been issued by the partnership firm and as per the provision contained in Section 141 of the NI Act, every person who, at the time the offence was committed, was in charge of and was responsible to the firm for the conduct of the business of the firm, shall be deemed to be guilty of the offence and shall be liable to be proceeded against under the provision of Section 138 of the NI Act. This Court is not inclined to exercise the powers under Section 482 of the Code in favour of the present applicants - Application dismissed.

Summary

Issues Involved:
1. Quashing of the complaint under Section 138 of the Negotiable Instruments Act (NI Act).
2. Legality of the debt and enforceability of the cheques issued.
3. Inclusion of applicant no.3 as an accused despite not signing the disputed cheques.

Issue-wise Detailed Analysis:

1. Quashing of the Complaint under Section 138 of the NI Act:
The applicants sought to quash the complaint filed under Section 138 of the NI Act, arguing that the ingredients for the alleged offence were not attracted. The court noted that the complaint was filed due to dishonored cheques issued by the applicants. The court emphasized that the complaint contained specific allegations against the applicants, including the issuance of cheques, their dishonor, and the statutory notice served under Section 138 of the NI Act. The court concluded that prima facie, the ingredients of the alleged offences were made out, and thus, the application to quash the complaint was not justified.

2. Legality of the Debt and Enforceability of the Cheques Issued:
The applicants contended that the debt was not legally enforceable as the amount was given in 2016, and the cheques were issued in 2021. They argued that the cheques were given as security and not for an enforceable debt. The court examined the promissory note and the complaint, which indicated that the amount of ?34,50,000/- was given as a loan with an agreement to pay 12% interest per annum. The court found that the debt was enforceable as there was no specific period for repayment mentioned, and the interest was to be paid regularly. The court also referred to previous judgments, including those of the Delhi High Court and the Bombay High Court, and concluded that the cheques issued, even if post-dated or given as security, were enforceable under Section 138 of the NI Act.

3. Inclusion of Applicant No.3 as an Accused Despite Not Signing the Disputed Cheques:
The applicants argued that applicant no.3 should not be included as an accused because she did not sign the disputed cheques. The court noted that applicant no.3 was a partner in the partnership firm that issued the cheques. Under Section 141 of the NI Act, every person responsible for the conduct of the business of the firm at the time the offence was committed is deemed guilty. The court found that specific allegations were made against applicant no.3 in the complaint, and thus, her inclusion as an accused was justified.

Conclusion:
The court dismissed the application, stating that the complaint under Section 138 of the NI Act was maintainable, the debt was legally enforceable, and the inclusion of applicant no.3 as an accused was justified under Section 141 of the NI Act. The court concluded that it was not inclined to exercise its powers under Section 482 of the Criminal Procedure Code to quash the complaint.