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TMI Blog2017 (3) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... ning to it also deserves to be rejected. Since a presumption arises under Section 139 of the NI Act with regard to the liability once a cheque has been issued which presumption has to be rebutted during the course of trial at this stage it is not for this Court to come to a conclusion in exercise of its jurisdiction under Section 482 Cr.P.C. that since no reply was given to the letter in question by Religare its contents are deemed to be admitted. In view of the discussion aforesaid this Court finds no reason to quash the complaint or set aside the order summoning the petitioners. - CRL.M.C. 2863/2016 & Crl.M.A. 12262/2016 (stay) - - - Dated:- 17-3-2017 - MS. MUKTA GUPTA J. Petitioners Represented by: Mr. Siddharth Luthra Mr. Manoj Ohri, Sr. Advs. with Mr. Manik Dogra, Mr. Haruy Chawla, Mr. Siddharth Das, Ms. Astha Nigam, Advs. Respondents Represented by: Mr. Ashok Kumar Garg, APP for State. Mr. Sandeep Sethi Mr. Sanjeev Puri, Sr. Advs. with Mr. Neeraj Sharma, Mr. Rushil Chandra, Mr. Dakshayani Saxena, Advs. for R2. MS. MUKTA GUPTA J. 1. Aggrieved by the order dated 9th July, 2016 passed by the learned Metropolitan Magistrate, Dwarka Courts s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gare and assured that the balance payment would be made before the agreed date. 3. It is the case of Religare that in order to avoid the payment, Strategic sent an e-mail communication dated 9th June, 2016 to the Religare purporting to terminate the Assignment Agreement and Supplemental Agreement which was duly replied by Religare on 10th June, 2016. When the cheque in question was presented by Religare, the same was returned unpaid by the bankers of Strategic for the reasons Refer to Drawer on the same date i.e. 15th June, 2016. Hence a notice dated 19th June, 2016 was issued to Strategic and other accused asking them to pay within 15 days of receipt of notice failing which Religare will institute legal proceedings including under Section 138 read with Section 141 of the NI Act. 4. Besides the facts noted in the complaint, one of the two further facts on which parties have argued in extenso is the letter dated 21st March, 2016 (in short the letter in question ) from Strategic to Religare which reads as under: March 21, 2016 Religare Finvest Limited Saket New Delhi Dear Sir or Madam, We are giving you cheque number 709845 drawn on HDF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation or evidence can be given in view of Section 91/92 of the Indian Evidence Act to contend that the signatures of Ankur Gupta on the letter in question were only an acknowledgement of receipt of the letter and did not admit or were in lieu of an Agreement of the terms of the letter. v) that the terms of the letter in question were specific and no reply having been given to the said letter, the pleas now being taken are after-thought. 8. Challenging the very maintainability of the present petition, learned counsel for Religare submits that the conduct of the petitioners warrants this petition to be dismissed as after terminating the Agreement with Religare, Strategic entered into an Assignment Agreement with Eleos on 25th July, 2015 which is the mirror image of the Agreement between Religare and Strategic and having paid only ₹ 10 crores out of ₹ 540 crores agreed to Religare, Strategic assigned the contract agreement to Eleos for a consideration of ₹ 1260 crores which sum has admittedly been received by Strategic in cash. It is contended that such a party who misconducts should not be heard the exercise of its discretionary jurisdiction under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by learned counsel for the petitioners, the Supreme Court held that filing of the complaint under Section 138 of the NI Act through Power of Attorney is perfectly legal and the Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the case, however the Power of Attorney holder must have witnessed the transaction as an agent of the payee/ holder of the instrument in due course or possess due knowledge regarding the said transaction. In the present case the Power of Attorney holder of Religare is Ankur Gupta who has been duly authorized by Board Resolution/Power of Attorney dated 7th July, 2016 and in the complaint itself it is stated that he is aware of the facts and circumstances of the present case on the basis of records of the complainant company/Religare. In fact, as noted above in the contentions and issues raised, the defence of Strategic revolves around the signatures of Ankur Gupta on the document dated 21st March, 2016. Hence the objection of Strategic that the complaint was not maintainable is liable to be rejected. 12. As regards issue No. (ii) to contend that in view of the SBLC there was no liability to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral contract is not a happy one. The strict literal interpretation of collateral is parallel or additional , and it does not signify the meaning secondary . To describe a guarantee as a collateral contract does not sufficiently emphasise its accessory character, although it would seem that the words collateral security might do so, as the word security even by itself-ordinarily means something auxiliary to an antecedent obligation. The obligation of a guarantor may not necessarily be conditional, except in the broad sense that he will be discharged if the principal-debtor performs the guaranteed obligation. There are two classes of guarantee: a promise which becomes effective if the debtor fails to perform his obligations, and a promise that the debtor will perform his obligation. Guarantees in the latter class are effectively unconditional. An agreement will not be a guarantee unless there exists or is contemplated some other principal, obligation of some other principal obligor, to which the guarantee is to be ancillary and subsidiary. There can be no suretyship, unless there be a principal-debtor, who, of course, may be constituted in the course of a trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen once it is discharged the guarantee comes to an end. It has to be borne in mind that the obligations arising under the Bank guarantee are independent of the obligations arising out of a specific contract between the parties. Therefore the endorsement of the words Lien to BG 11/80 cannot have a bearing on the banker's lien on the two FDRs. Merely because on the basis of the security of the two FDRs the appellant Bank gave a guarantee it cannot be said that the banker had only a limited particular lien and not a general lien on the two FDRs. In our view this finding of the High Court is erroneous. 16. As noted above a guarantee is an ancillary contract whereby the promisor undertakes to be answerable to the promisee for the debt, default or miscarriage of another person whose primary liability to the promisee must exist or be contemplated. Thus merely because the SBLC was valid on the date of presentation of cheque in question, it cannot be held that there was no existing liability, which fact is also fortified by Clause 2.3 (c) of the Assignment Agreement which provided that assignor will be entitled to invoke SBLC if the assignee fails to pay Outstanding Balance Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists [ Section 3, Evidence Act]. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 482 Cr.P.C. and the parties are yet to lead their evidence it is not open for this Court to draw any conclusion on the issue between the two parties as to whether the signatures of Ankur Gupta on the letter in question were only in acceptance of the letter or it would be deemed that he had accepted the contents of the letter in question as well. This is an issue to be determined during trial. Thus the argument of the learned counsel for the Strategic that the letter in question has to be read as it is and no oral evidence can be led to give a meaning to it also deserves to be rejected. 22. Since a presumption arises under Section 139 of the NI Act with regard to the liability once a cheque has been issued which presumption has to be rebutted during the course of trial at this stage it is not for this Court to come to a conclusion in exercise of its jurisdiction under Section 482 Cr.P.C. that since no reply was given to the letter in question by Religare its contents are deemed to be admitted. The decision of this Court in the Pradeshiya Industrial Investment Corporation of U.P. Ltd. vs. M/s Pacquik Industries Ltd. Ors. Co. Appl No.54/2013 decided on 28th Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Corpn. Ltd. v. Indian Technologists Engineers (Electronics) (P) Ltd., (1996) 2 SCC 739 : 1996 SCC (Cri) 454] does not support the appellant as far as the facts that emerged in the present cases inasmuch as the drawer had intimated to the bank on 8-8-1984 to stop the payment whereas the cheques were presented for encashment on 9-8-1994 although the same were drawn on 23-2-1994, 26-2-1994 and 28-2-1994. The learned counsel for the respondent strongly relied upon the following observations in Electronics Trade Technology Development Corpn. Ltd.[Electronics Trade Technology Development Corpn. Ltd. v. Indian Technologists Engineers (Electronics) (P) Ltd., (1996) 2 SCC 739: 1996 SCC (Cri) 454]: (SCC p. 742, para 6) Suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted. (emphasis in original) 14. The learned counsel for the appellant submitted that if the attention of the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted , does not fit in with the object and purpose for which the above chapter has been brought on the statute-book. 22. The learned counsel placed reliance on paragraph 6 of the judgment of this Court in the case of G oaplast (P) Ltd. v. Chico Ursula D'Souza [(2003) 3 SCC 232 : 2003 SCC (Cri) 603], which reads as under: (SCC pp. 237-38, para 6) 6. In the present case the issue is very different. The issue is regarding payment of a post-dated cheque being countermanded before the date mentioned on the face of the cheque. For the purpose of considering the issue, it is relevant to see Section 139 of the Act which creates a presumption in favour of the holder of a cheque. The said section provides that: 139. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Thus it has to be presumed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to inspire regarding payment being available on the due date. 26. The object and the ingredients under the provisions, in particular, Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a civil court is a long-drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. 25. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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