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TMI Blog2017 (7) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... of 50,00,000/- does not ipso facto suggest that the offence committed is one. Whereas, the cheques issued on the different dates constitute different cause of action under Negotiable Instruments Act. The trial Court correctly awarded substantive sentence to run consecutively rather than to award the sentence concurrently although the cheques issued by the petitioner were to meet their outstanding liability for the OCC/OD limit availed by him qua against the respondent/complainant-Bank but it does not form one single transaction rather constitute separate cause of action. X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Metropolitan Magistrate in each complaint case vide separate judgments dated 26.11.2016 convicted the petitioner for the offence committed under Section 138 of NI Act and vide separate orders on sentence dated 20.02.2017 sentenced the petitioner to undergo simple imprisonment for a period of six months in each complaint case and directed the petitioner to pay a compensation of ₹ 1,00,000/-(One Lakh Only) to the respondent/complainant-Bank within two months from the date of the orders, i.e. 20.02.2017, failing which the petitioner will be liable to further undergo simple imprisonment of one month in each complaint case. 5. Aggrieved from the said judgments of conviction dated 26.11.2016 and orders on sentence dated 20.02.2017 the petitioner filed appeals under Section 374(3) Cr.P.C. before the Court of District and Sessions Judge, Tis Hazari Courts, Delhi and the learned Special Judge, NDPS-02 (Central) Tis Hazari Courts, Delhi vide separate judgments dated 28.03.2017 modified the substantive sentence of imprisonment by reducing the simple imprisonment for a period of six months to a period of three months in each complaint case. Hence the present petitions. 6. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the present revision petition is not maintainable and is liable to be dismissed as the petitioner had grossly failed to show any error apparent on the face of record in the order dated 28.03.2017 passed by the appellate Court. The petitioner had only pleaded for leniency on the point of substantive sentence of imprisonment and had not challenged the judgment of conviction passed by the trial Court in the appeal. 11. The learned counsel for the respondent/complainant-Bank has further submitted that the contention of the learned counsel for the petitioner that the sentence should run concurrently and not consecutively is also not maintainable as the petitioner had committed separate and distinct offence and was rightly punished separately for each offence by the trial Court. 12. The learned counsel for the respondent/complainant-Bank has further submitted that there was an outstanding liability/debt against the petitioner as on the date of issuance of cheques and the contention of the learned counsel for the petitioner that the cheques were issued towards settlement and not towards the payment in discharge of debt and would not attract the provisions of Section 138 NI Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn of within the period of its validity whichever is earlier; (iii) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;" 16. In the instant case the respondent/complainant-Bank had filed three complaint cases against the petitioner for the offence committed under Sections 138 NI Act on 19.09.2007. The learned Metropoli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. 8. Clause 3.1(iii) of the agreement may also be noted:- 3.1 SECURITY FOR THE LOAN The loan together with the interest, interest tax, liquidated damages, commitment fee, up front fee prima on repayment or on redemption, costs, expenses and other monies shall be secured by; (i) xxxxx (ii) xxxxx (iii) Deposit of Post dated cheques towards repayment of installmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e word "security" is used in Clause 3.1(iii) of the agreement, the said expression refers to the cheques being towards repayment of installments. The repayment becomes due under the agreement, the moment the loan is advanced and the installment falls due. It is undisputed that the loan was duly disbursed on 28th February, 2002 which was prior to the date of the cheques. Once the loan was disbursed and installments have fallen due on the date of the cheque as per the agreement, dishonour of such cheques would fall Under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability. 12. Judgment in Indus Airways (supra) is clearly distinguishable. As already noted, it was held therein that liability arising out of claim for breach of contract Under Section 138, which arises on account of dishonour of cheque issued was not by itself at par with criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour of cheque issued for discharge of later liability is clearly covered by the statute in question. Admittedly, on the date of the cheque there was a debt/liability in praesenti in terms of the loan agreement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition Under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. The High Court further erred in observing that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorised by the complainant company or not, could not have been examined by the High Court in its jurisdiction Under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it. 11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. [MANU/SC/7050/2008 : (2008) 13 SCC 678], this Court has made the following observations explai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement with the above observations. In the present case, reference to the complaint (a copy of which is Annexures P-7) shows that as per the case of the complainant, the cheques which were subject matter of the said complaint were towards the partial repayment of the dues under the loan agreement (para 5 of the complaint). 17. As is clear from the above observations of this Court, it is well settled that while dealing with a quashing petition, the Court has ordinarily to proceed on the basis of averments in the complaint. The defence of the accused cannot be considered at this stage. The court considering the prayer for quashing does not adjudicate upon a disputed question of fact. 18. In Rangappa v. Sri Mohan MANU/SC/0376/2010 : (2010) 11 SCC 441, this Court held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption. A post d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Ltd. And Others; (2000) 2 SCC 745 has specifically stated that if the ingredients are satisfied by the complainant then the person who has drawn the cheque shall be deemed to have committed an offence and the relevant para is reproduced as under:- "11. If the aforementioned ingredients are satisfied then the person who has drawn the cheque shall be deemed to have committed an offence. In the explanation to the section clarification is made that the phrase "debt or other liability" means a legally enforceable debt or other liability." (underlining supplied) 21. In the instant revision petitions the cheques, i.e., cheque no. 092831 of ₹ 2,50,000/-, cheque no. 092830 of ₹ 2,50,000/-, cheque no. 092829 of ₹ 5,00,000/-, cheque no. 092828 of ₹ 2,50,000/-, cheque no. 092832 of ₹ 2,50,000/- and cheque no. 092833 of ₹ 5,00,000/-, were issued by the petitioner for repayment of the outstanding dues which were arising from the continuous liability qua against the petitioner from the OCC/OD limit of ₹ 50,00,000/- availed by him. In C.C.No. 535341/16 the cheques were dishonoured vide return memos dated 12.06.2007 with a remark &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e default sentences are concerned Section 30 of The Code Of Criminal Procedure, 1973 is reproduced as under:- " 30. Sentence of imprisonment in default of fine. (1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided that the term- (a) is not in excess of the powers of the Magistrate under section 29; (b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. (2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 29. 26. It is an admitted fact emerging on the record that the petitioner was directed to pay a fine of ₹ 1,00,000/- in each complaint cases as compensation to the respondent/complainant-Bank and in default of payment the petitioner shall further undergo a simple imprisonment of one month for each complaint cases which does not exceeds one fourth of the term of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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