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2023 (9) TMI 703 - HC - Indian LawsDishonour of Cheque - legally enforceable debt or not - present complaint filed only with the sole motive to extort money from the petitioners without any legally enforceable debt against them - respondent had not mentioned or enclosed any document or agreement against which the alleged loan was tendered to the petitioner - HELD THAT - It is apparent that cheques bearing no 997642 which is basis of present complaint is dated 01.06.2018 while the petitioner no 1 through the petitioner no 2 intimated its banker vide letter dated 27.09.2014 to stop any payment against these cheques and made a complaint to the SHO, Police Station Mehrauli, New Delhi on 27.9.2014 vide NCR No. 1361/2014 dated 01.10.2014 i.e. much prior from alleged dates of issuance of cheque bearing no 997642. However plea of the petitioners that cheque bearing no 997642 which is basis of present complaint was lost in year 2014 much prior to issuance of the cheque in favour of the respondent no 2 can only be established during trial and on basis of the evidence to be led by the petitioners and the respondent no 2. The proposed defence of the petitioners as detailed cannot be legally considered at time of taking cognizance by the trial court which is obliged to take cognizance merely on basis of allegations as made in complaint and pre summoning evidence if any. On the basis of pleas as taken in the present petition and arguments advanced by the learned Senior Counsel for the petitioners, the summoning order dated 23.10.2018 cannot be recalled. The petition is devoid of any merit - Petition dismissed.
Issues Involved:
1. Validity of the summoning order dated 23.10.2018. 2. Allegations of extortion and fabrication of documents by the respondent. 3. Applicability of Section 138 of the Negotiable Instruments Act to stolen cheques. 4. Jurisdiction and procedural aspects of the complaint. Summary: 1. Validity of Summoning Order: The petitioners challenged the summoning order dated 23.10.2018 issued by the Court of Sh. Vikram, MM-01, North, Rohini Courts, Delhi in Complaint Case No. 4821/2018 under Section 138 of the NI Act. The Court took cognizance of the offence based on the pre-summoning evidence and issued summons to the accused. The petitioners argued that the cheque in question (No. 997642) was stolen in 2014, and thus, the summoning order should be set aside. 2. Allegations of Extortion and Fabrication: The petitioners alleged that the respondent company was involved in preparing false and fabricated documents to extort money and was running an extortion racket. Several cases were filed against the petitioners in Delhi and Jammu & Kashmir. The petitioners highlighted ongoing investigations and FIRs against the respondent's directors, claiming that the complaints were made to extort money without any legally enforceable debt. 3. Applicability of Section 138 of NI Act to Stolen Cheques: The petitioners contended that the stolen cheques do not fall under the ambit of "negotiable instruments." They cited previous legal notices and complaints regarding the stolen cheques and argued that the cheques were reported lost in 2014. The Supreme Court in Raj Kumar Khurana v. State (NCT of Delhi) held that a cheque reported lost by the drawer does not attract penal provisions under Section 138 of the NI Act. The Court noted that the plea of the stolen cheque could only be established during the trial based on evidence. 4. Jurisdiction and Procedural Aspects: The petitioners raised procedural issues, including the concealment of facts by the respondent and the lack of specific allegations against the directors. They argued that the complaint was filed with mala fide intent to extort money. The Court observed that the proposed defense of the petitioners could not be legally considered at the time of taking cognizance and that the trial court is obliged to take cognizance based on the allegations and pre-summoning evidence. Conclusion: The Court dismissed the petition, stating that the summoning order dated 23.10.2018 could not be recalled based on the pleas and arguments presented. The petitioners were granted the liberty to raise all their defenses and contentions during the trial. The interim stay, if any, stood vacated.
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