2023 (10) TMI 1154 - HC - Indian Laws

Dishonour of Cheque - legally recoverable debt - actual amount due and payable on the part of petitioner/accused towards the complainant/respondent - whether the amount due as on date of presentation of cheque for encashment and its subsequent dishonoring was less than the amount of cheque in question? HELD THAT - The legal presumption of the cheque having been issued in the discharge of liability must also receive due weightage. In a situation where the accused moves Court for quashing even before trial has commenced, the Court's approach should be careful enough to not to prematurely extinguish the case by disregarding the legal presumption which supports the complaint. The legal presumption of the cheque having been issued in the discharge of liability must also receive due weightage. In a situation where the accused moves Court for quashing even before trial has commenced, the Court's approach should be careful enough to not to prematurely extinguish the case by disregarding the legal presumption which supports the complaint. This Court is of the opinion that the issues raised before this Court can only be decided by the learned Trial Court at appropriate stage, on their own merits. Since a prima facie case exists against the petitioner under Section 138 of NI Act, there are no reasons to quash the summoning order dated 25.09.2019. Petition dismissed.

Issues Involved:
1. Validity of the summoning order under Section 138 of the NI Act.
2. Allegations of false and fabricated ledger entries.
3. Determination of actual amount due and payable.
4. Issuance of cheque as security or for discharge of debt.

Summary:

1. Validity of the Summoning Order under Section 138 of the NI Act:
The petition was filed under Section 482 of the Cr.P.C. challenging the summoning order dated 25.09.2019 issued by the Metropolitan Magistrate in a complaint under Section 138 of the NI Act. The petitioner argued that the complaint was invalid as the amount due was less than the cheque amount. However, the Court noted that the prima facie case under Section 138 of the NI Act existed as the cheque was issued for the discharge of a debt or liability.

2. Allegations of False and Fabricated Ledger Entries:
The petitioner claimed that the complainant had manipulated ledger entries and did not give proper credit for payments made. The complainant countered that the petitioner had filed an incomplete ledger and suppressed the complete ledger, which showed a higher amount due. The Court held that the genuineness of the ledgers could only be adjudicated during the trial.

3. Determination of Actual Amount Due and Payable:
The controversy centered on the actual amount due at the time of cheque presentation. The petitioner contended that the amount due was Rs. 19,43,826/-, while the cheque was for Rs. 23,35,736/-. The complainant argued that the total amount due was Rs. 48.98 lakhs. The Court observed that the determination of the actual liability could only be made during the trial based on evidence.

4. Issuance of Cheque as Security or for Discharge of Debt:
The petitioner argued that the cheque was issued as a security cheque, not for the discharge of a debt. The Court referred to the Hon'ble Apex Court's decision in Rathish Babu Unnikrishnan v. State (NCT of Delhi), which stated that such defenses should be evaluated during the trial. The Court emphasized that the legal presumption under Section 139 of the NI Act supports the complainant's case unless rebutted by the accused during the trial.

Conclusion:
The Court dismissed the petition, stating that the issues raised could only be decided by the Trial Court based on evidence presented during the trial. The summoning order dated 25.09.2019 was upheld, and the petition was dismissed along with pending applications. The judgment emphasized that the findings were preliminary and did not reflect the merits of the case.

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