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TMI Blog2015 (6) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... tinuance of proceedings, arising out of these two complaints in question. When the complaints in question are at advanced stage of recording of evidence, then meticulous examination of the averments in these complaints in the exercise of extra ordinary jurisdiction under Section 482 of Cr.P.C. is considered to be inappropriate as it cannot be said that the averments regarding the part played by petitioners in the transaction in question is lacking. - Since, prosecution of petitioners in these two complaints cannot be said to be vexatious or amounting to fishing inquiry against them, therefore, it cannot be said that continuance of instant proceedings against petitioners is an abuse of the process of the law. - Appeal disposed of. - CRL.M.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,00,000/- respectively and quashing of these two complaints is sought on the ground that the aforesaid two post dated cheques were not issued in discharge of any debt or existing liability and receipt of these two cheques is hit by Section 3(2) of Foreign Exchange Management Act, 1999 (hereinafter referred to as FEMA ). With the consent of learned counsel for the parties, the above captioned six petitions were heard together and are being disposed of by this common judgment. The undisputed facts emerging from the two complaints in question are that a 100% foreign subsidiary of M/s Rachana Global in Mozambique, Africa entered into a commercial relationship with a 100% foreign subsidiary of M/s Jindal Steel and Power Limited (hereinaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was pointed out by learned counsel for petitioners that in these two complaints, there are no averments to indicate that petitioners Nalin and Ashesh were Incharge and were responsible for the dishonor of cheques in question and so bald assertions made in these two complaints are not sufficient to hold petitioners Nalin and Ashesh vicariously liable for the offence in question. It was pointed out that role of petitioners Nalin and Ashesh is required to be highlighted as there is no deemed liability of a Director or Chairman of the company. To contend so, reliance is placed upon decisions in Central Bank of India v. Asian Global Limited and Others (2010) 11 SCC 203 ; Anita Malhotra v. Apparel Export Promotion Council and Another (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mac Industries Limited 1999 (I) CTC 6 ; Icon Buildcon Private Limited v. Aggarwal Developers Private Limited and others 2014 (I) MWN (Cr.) DCC 177 (Del.). Lastly, it was submitted on behalf of petitioners that permission of Reserve Bank of India for recovery of debt of a foreign company has not been taken and so the complaints in question are hit by FEMA. Thus, it is submitted that continuance of proceedings arising out of these two complaints is an abuse of process of law and so these two complaints deserve to be quashed. Learned Senior counsel for respondent - complainant contended that whether a cheque is a security cheque or towards an outstanding liability, is a question of fact, which requires trial. It was pointed out tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign security) Regulation, 2000 permitted issue of such guarantees by holding companies, to or for the benefit of their overseas joint ventures or subsidiaries promoted or set up by them and in which they have made investments in accordance with the provisions of this Regulation. It was next submitted by learned Senior Counsel for respondent-complainant that giving of such a guarantee is also permitted under Regulation 5 (b) of the Foreign Exchange Management (Guarantee) Regulations, 2000. It was pointed out that the only requirement is of reporting to Reserve Bank of India which too was the obligation of petitioner M/s Rachana Global and not of the answering respondent complainant. In the last, it is submitted that Notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le or not. This question is left open to be determined at the final stage of trial. Similarly, the question as to whether the cheques in question were towards existing liability or not, is not required to be pre-judged, when the summary proceedings under Section 138 NI Act are at the fairly advanced stage. To do so, it would be premature. In fact, it is quite debatable as to whether the cheques in question were security cheques or not and it would be most appropriate that this aspect is conclusively determined at the final stage after considering the evidence. Whether the use of word security in the letter of 18th January, 2010 would make it a security cheque or the cheques in question were legally enforceable on the day of issue, agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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