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2022 (5) TMI 196 - HC - Indian LawsDishonor of Cheque - tampered cheque - date overwritten in the cheque - existence of legally enforceable liability or not - Section 138 N.I. Act - HELD THAT - From the perusal of the order sheet it appears that after hearing the parties arguments at some length, this court on 20.2.2019 has held that all the ingredients of Section 138 N.I. Act as considered by he Apex Court in the case of JUGESH SEHGAL VERSUS SHAMSHER SINGH GOGI 2009 (7) TMI 1143 - SUPREME COURT has been made out in cumulative. The conclusion of the learned counsel for the applicant that since it was a post dated cheque the liability was a future liability and it had not accrued on the date of presentation of the cheque is misconceived. It is also mentioned in the aforesaid order that at this stage learned counsel for the applicant submitted that an opportunity be provided to the applicant to repay the money to discharge his liability. So this defence has already been considered and rejected by this court. From the material on record, it is clear that this case does not come under any of the categories as mentioned by the Hon ble Apex Court in the aforesaid case. There is nothing on record to show that the continuation of the proceedings is an abuse of the process of the court. There is no illegality in the impugned summoning order. Application dismissed.
Issues:
Application to quash summoning order under Section 482 Cr.P.C. Analysis: 1. Summoning Order Quashing: The applicant sought to quash the summoning order dated 9.6.2000 under Section 482 Cr.P.C in a case involving allegations under Section 138 N.I. Act and 420 I.P.C. The applicant argued that the cheque was not dishonored due to insufficiency of funds but because of alterations requiring drawer's attestation. The applicant contended that the legal notice did not mention insufficiency of funds, and witnesses did not corroborate this claim. Additionally, the applicant argued that the cheque was from a cash credit account, not a saving or current account, and no material was supplied by the complainant, making the proceedings an abuse of court process. 2. Contentions of Opposite Party: The opposite party contended that the cheque was given in exchange for supplied material, as evidenced by the cheque's contents and admissions by the applicant. It was alleged that the applicant intentionally issued a cheque from an account without sufficient funds, colluding with the bank manager for alterations. The opposite party asserted that the cheque was dishonored due to insufficiency of funds, justifying offenses under both Section 138 N.I. Act and 420 I.P.C. 3. Court's Analysis: The court considered the arguments from both parties and referred to the case of Jugesh Sehgal vs. Shamsher Singh Gogi to establish the ingredients of Section 138 N.I. Act. The court rejected the applicant's defense that the liability was future due to the post-dated cheque, stating that the defense had been previously considered and dismissed. The court noted that the bank memo cited insufficiency of funds as one reason for dishonoring the cheque, supporting the allegations made by the opposite party. 4. Legal Precedents and Dismissal: The court referred to the case of Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haq to emphasize that only a prima facie case needs to be seen at this stage. Further, the court cited the norms from the case of 'State of Haryana vs. Ch. Bhajan Lal' to outline scenarios where the court's powers under Section 482 Cr.P.C can be exercised. Ultimately, the court found that the case did not fall under any of the mentioned categories, concluding that there was no abuse of court process and upheld the summoning order, dismissing the application under Section 482 Cr.P.C for lacking merits.
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