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TMI Blog2018 (3) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... operative as a bill of exchange even if the drawer and drawee are happened to be the same person or banking institution. The orders passed by the Courts below cannot be held to be illegal and it shall always be open to the petitioners to rebut the presumption during the course of evidence that the Bank was not a 'holder in due course' and it was not for any consideration of liquidation of the loan. Prima facie, the complaint having been registered on the basis of section 145 of the N.I. Act upon the affidavit, the same cannot be quashed at the threshold and the petitioners are liable to face the trial of complaint under Section 138 of the N.I. Act. Petition dismissed. - CRMP No. 956 of 2017 - - - Dated:- 20-2-2018 - Hon'ble Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HDFC Bank 0152863000254 Global Packaging Global Packaging 000504 dt.31.10.15 25 lakhs 31.10.15 4. After the complaint was filed, the same was subject of challenge about the maintainability. Initially the objection was made before the JMFC by the petitioners/accused that the drawer and drawee of the cheques being one and the same, the Branch Manager of the Bank cannot maintain the complaint u/s 138 of the N.I. Act. The same having been over ruled and the charges were framed on 10.02.2017, the same was subject of challenge before the revisional Court. The revisional Court by impugned order dismissed the revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment for discharge of a debt owed to the complainant Bank they were dishonoured, therefore, the bank has all the right or authority to maintain the complaint u/s 138 of the NI Act. He further submits that the affidavit of the complainant was enclosed along-with complaint in terms of section 145 of NI Act, therefore, the cognizance cannot be said to be bad in law. He further submits that all the objections can be gone into during the course of evidence and if the original cheques are not produced then automatically the complaint may fail. Therefore, the objection raised by the petitioner is premature. 7. Perused the document. The question which falls for consideration in this case is whether the Bank was entitled for encashment of Cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder in due course means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or endorsee thereof, if (payable to order, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. 9. The Supreme Court in similar nature of case reported in (2001) 7 SCC 721 Punjab Sind Bank Vs. Vinkar Sahakari Bank Ltd. , held that so long as the instrument is in possession of a 'holder in due course' such instrument would be operative as a bill of exchange even if the drawer and drawee are happened to be the same person or banking institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the cheques in repayment of loan and therefore the cheques were held by the Bank in consideration of loan to liquidate the same. A person whose banking account is overdrawn or his loan account is over due, if negotiates with his banker a cheque to reduce the overdraft or to repay the loan the banker becomes a holder for value of the cheque. The preexisting debt of the loan or overdraft is a sufficient consideration for the negotiation of a cheque to the banker. If a person hand-overs cheque to the bank with the clear understanding to the bank that cheque is towards the debt payable by the Company or Firm though the cheque remains in the name of the Company or Firm but in such case the bank would become holder of the cheque in due cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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