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TMI Blog2019 (10) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... NU MALHOTRA J. Petitioners Through: Mr. Rizwan, Advocate. Respondent Through: Mr. Rohan Jaitley & Mr. Akshay Sharma, Advocates. JUDGMENT ANU MALHOTRA, J. 1. The petitioner no.1 M/s Goutam Shoe Store through its signatory Goutam Dutt arrayed as the petitioner nos. 1 & 2 respectively, vide the present petition seek the quashing of the Complaint Case No.6337/2019 and the proceedings emanating therefrom, pending before the learned MM-04, Patiala House Courts, New Delhi as well as the quashing of the order dated 01.05.2019 vide which the petitioner was summoned on cognizance having been taken by the learned Trial Court of the MM-04 (NI Act) NDD/PHC, New Delhi District of the alleged commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. Notice of the petition was issued to the respondent who has put in appearance. 3. Submissions were made on behalf of either side by their learned counsel. 4. Vide the impugned order dated 01.05.2019, the learned Trial Court after having taken into consideration the complaint filed by the complainant i.e. the respondent herein as well as the affidavit tendered in pre-summoning evidence and documents subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the payment of the said amount. 5. That while issuing the aforesaid Cheque bearing No. 000011 dated 13.03.2019 for R.7,67,472.21 (Seven lakh Sixty Seven Thousand Four Hundred Seventy Two Rupees and Twenty one Paisa only), the accused assured and represented to the complainant that the said Cheque was good for realization and the same shall be honoured on its presentation. 6. That the complainant presented the aforementioned cheque for encashment to HDFC Bank Limited, Kasturba Gandhi Marg, New Delhi 110001. The said cheque, got dishonoured on account of "ACCOUNT CLOSED". The intimation regarding dishonoring of the aforesaid Cheque was given to the complainant by its Bankers, HDFC Bank Limited, Kasturba Gandhi Marg, New Delhi-110001 vide cheque return memo dated 15.03.2019 and having the remark "ACCOUNT CLOSED" which shows the malafide intention and ulterior motive of the accused for avoiding the discharge of its legal liability towards the complainant company and has thus committed an offence punishable under section 138 of the Negotiable Instruments Act, 1881. 7. That the Accused had issued the Cheque in discharge of his liability on account of the footwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 138 of the Negotiable Instruments Act, 1881 requires the existence of a bank account and maintenance thereof at the time of the issuance of a cheque by any person, which cheque needs to be dishonoured on account of insufficiency of funds or it requires the amount of the cheque to be in excess of the amount arranged to be paid from that account, to make a person culpable for the commission of an offence punishable under the said provision of Section 138 of the Negotiable Instruments Act, 1881. 7. The petitioners submit that in the instant case their bank account had closed in the year 2017 and they had informed the respondent of the same and in as much as there was no cheque drawn by the petitioner on an account maintained by them, the complaint of the respondent is not maintainable. The petitioners further submitted that the respondent was also in receipt of the letter dated 22.08.2017 sent by the petitioners, wherein it had been stated that their account number had changed to 09010400000186 but despite the same, the respondent in a malafide manner had presented the cheque for encashment, which was drawn from the previous account as a security cheque and that the respondent h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 35. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled: (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; (ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has 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; (iv) 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; (v) 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; (vi) the drawer of such cheque fails to make payment of the said amount of money to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates that the cheque bearing no.000011 for a sum of ₹ 7,67,472.21/- was returned on 15.03.2019 as the account in the HDFC Bank was closed, the said bank return memo also does not indicate when the said account was closed and thus the contention raised on behalf of the petitioners that the account of the petitioners was already closed on the date 13.03.2019, the date of the issuance of the cheque can only be determined on trial. 15. The cheque in question was undoubtedly issued by the petitioners as brought forth through the averments in paragraph 5 of the petition, which reads to the effect:- "5. That the said cheque was from an old account of the petitioner bearing no. 09010500000085. The said cheque was drawn on Bank of Baroda, Cooch Behar Branch, West Bengal-736101. The said cheque was returned as dishonored as per the bank memo dated 15.03.2019 with the remark "account closed"." The aspect of the closure of the bank account of the petitioner prior to the issuance of the cheque, is a matter which cannot be determined without trial as already observed hereinabove and thus, it is held that there is no infirmity in the impugned order dated 01.05.2019 of the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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