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TMI Blog2017 (7) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination of good faith of issuance of cheques with acknowledgement of outstanding liability remains to be determined during the trial. In the instant petition both the aforesaid facts are emerging as a question of facts and law which unequivocally are giving rise to a mixed question of facts and law which is to be determined during due course of trial. Therefore, invocation of inherent jurisdiction of this Court under Section 482 Cr.P.C. is unwarranted at this stage. X X X X Extracts X X X X X X X X Extracts X X X X ..... ashment the same got dishonoured. Intimation to this effect was sent to the petitioners vide letter dated 10.02.2011 and the petitioners vide letter dated 15.02.2011 issued fresh four post dated cheques collectively amounting to ₹ 3,25,00,000/-. The details of the said four post dated cheques are as under:- S. No. Cheque No. Dated Amount Bank 1. 381876 30.04.2011 ₹ 75,00,000/- Punjab National Bank 2. 381877 30.05.2011 ₹ 75,00,000/- Punjab National Bank 3. 381878 30.06.2011 ₹ 75,00,000/- Punjab National Bank 4. 381879 30.07.2011 ₹ 1,00,00,000/- Punjab National Bank Total ₹ 3,25,00,000/- 6. Thereafter, the respondent/complainant presented the first post dated cheque No. 381876 of ₹ 75,00,000/- dated 30.04.2011 however, the said cheque stood dishonoured with remark "Funds Insufficient". Further on various reminders the petitioner paid a sum of ₹ 50,00,000/- vide Pay Order bearing No. 491992 on 08.09.2011. When the respondent/complainant requested the petitioners to clear the balance amounts, the petitioner No.1 through the petitioner No.3 issued a letter dated 02.12.2011 wherein it was stated that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent/complainant it was deemed to be filled up at the subsequent date and in the present case it was specifically authorized to do so. This presumption has to be rebutted by the petitioner(s) in the trial and all the grounds which are raised by the petitioner(s) in the present petition are disputed question of facts which cannot be decided by this Court in the inherent jurisdiction under Section 482 Cr.P.C. Reliance is placed on the judgments Mojj Engineering Systems td. & Ors. vs. .B. Sugar Ltd.; 2009 (107) DRJ 142 and Purshottam Maniklal Gandhi vs. Mahohar K. Deshmukh & Anr.; (2007) 4 BOMCR 404. 11. In rebuttal, the learned Senior counsel for the petitioners has further submitted that the arguments contended by the learned Senior counsel for the respondent does not stand good in law and further submitted that the cheques were issued on 02.12.2011 and it is the case of the respondent/complainant that it is only in 2016 that alleged authority to put the sign was given. Consequent to that, the date put was 19.02.2016 and on that date there was no legally enforceable debt qua the petitioners therefore, the cheque in question is barred by law. Reliance is placed on the judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 16. The Hon'ble Supreme Court in the case of Kusum Ingots & Alloys Ltd. vs. Pennar Peterson Securities Ltd. And Others; (2000) 2 SCC 745 has laid down the following ingredients for taking cognizance under Section 138 of the NI Act:- " (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the judgment of the this Court in the case Ravi Chopra vs. State and Anr.; 2008 (102) DRJ 147. 19. The Bombay High Court in case Purushottam Maniklal Gandhi vs Manohar K. Deshmukh & Anr.; 2006 SCC Online Bom 932 has observed that when a drawer of a cheque delivers a signed cheque, he obviously gives an authority to the holder to put a date of his choice. Therefore, there would be no question of the instrument becoming time barred, since it would become time barred only from the date of issue, which, in view of the provision 118 would be the date on the cheque, which, under Section 20, the holder had the authority to fill. 20. The contention of the learned senior counsel for the petitioner that the cheques in question were of the year 2011 and by putting the date on the said cheques does not create any fresh liability qua the petitioners does not seems to be correct on the following grounds:- 1) Issuance of the cheques in question is not disputed between the parties. 2) The cheques issued were in consequence of the two agreements dated 23.03.2007 and 07.05.2009 entered between the parties. 21. In the instant petition the issuance of the post dated cheques by the petitioners i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhat vs. Shri Divakar Lolinenkar; 2000 (5) BOMCR 9. 24. However, the petitioner has relied on its reply dated 11.04.2016 to the notice dated 23.03.2016 of the respondent/complainant wherein the petitioners have stated that the aforesaid cheques were given to the respondent/complainant in good faith in furtherance of bonafide intent and the petitioners always intended to repay which is reproduced as under:- " 1.5 On 08.09.2011 my Clients further paid a sum of ₹ 50,00,000(Rupees fifty lakhs only to Mr. Vikram Bhatia/SLL vide a pay order bearing no. 491992. Since the earlier two cheques, i.e. cheque no. 381876 dated 30.04.2011 and cheque no. 381877 dated 30.05.2011 each for ₹ 75,00,000/- Rupees seventy five lakhs only) entrusted to Mr. Vikram Bhatia/SLL were no longer valid, my Clients in good faith an in furtherance of their bonafide intent, once again under cover of letter dated 02.12.2011 entrusted Mr. Vikram Bhatia/SLL with two undated cheques, i.e. cheque no. 440712 for ₹ 25,00,000/- (Rupees twenty five lakhs only) and cheque no. 440713 for ₹ 75,00,000/- (Rupees seventy five lakhs only). From aforesaid facts it is evident thatmy Clients always inten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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