9911796707
TMI Blog2021 (7) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners are bound to establish the validity or otherwise of the cheque by adducing oral and documentary evidence during trial and at this point of time, it would not be prudent for this Court to render one finding or the other as to the validity of the cheque, in the absence of any substantial material voicing any particular view with regard to the same - the circular of the Reserve Bank of India shows that the banking channels, based on the digital signature in the form of Magnetic Ink Character Recognition (MICR), would be in a position to distinguish a non-CTS-2010 cheque from a CTS-2010 cheque. The Court, appreciating an issue u/s. 482 of the Code of Criminal Procedure, would not be justified in giving a decision one way or the other as to the nature of the cheque, which is put in issue by the parties as the same has to be established only at the time of trial by adducing oral and documentary evidence. In the present petition u/s. 482 Cr.P.C., no material with regard to the cheque being given as security or the business arrangement between the petitioners and the respondent is placed - deciding on the nature of the cheque, being a non-CTS-2010 cheque, according to the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n number, were issued only towards security purpose, had been misused by the respondent, more especially, knowing fully well that the said cheques are non-CTS-2010 complaint cheques. 4. It is the further submission of the learned senior counsel for the petitioner that the Reserve Bank of India having intimated that the non-CTS-2010 cheques would not be valid after 31.3.2013, the respondent being a business entity, was also very much aware of the invalidity of the security cheques, which it was holding, but wantonly had deposited one of the cheques, knowing it to be invalid and, the cheques, being given only for security purposes, have been deposited by the respondent, without notice to the petitioner. 5. It is the further submission of the learned senior counsel for the petitioner that the respondent cannot claim ignorance of the cheque not being CTS-2010 complaint as it is also a large establishment, which would have its own Finance and Legal Department, who would be knowing the nuances of the deposit of a non-CTS 2010 cheque. It is the further submission of the learned senior counsel that only towards the commission payment between the petitioners and the respondent, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that even according to the complaint of the respondent, the cheque was given only on 20.7.2015, which, on deposit, was returned by the bank with the noting Refer to Drawer . It is the submission of the learned counsel for the respondent that the petitioners cannot take shelter under the garb of insufficiency of funds mandated under Section 138 of the Negotiable Instruments Act, as the said Act also visualises other scenarios, which has not been codified, but has been left open by the use of the word etc. after insufficiency of funds. The said coinage is only for the purpose of meeting out such calamities and, therefore, it is not open to the petitioners to contend that the dishonour of the cheque not being on the ground of insufficiency of funds, the same cannot be put against them u/s. 138 of the Act. 10. It is the further submission of the learned counsel for the respondent that all the petitioners are jointly and severally liable to pay the amount and under the guise of being non-executive directors, petitioners 3 and 4 cannot claim immunity as there is no material whatsoever to arrive at a conclusion that petitioners 3 and 4 are non-executive directors of A-1 company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int that petitioners 3 and 4 are also liable to be proceeded with does not stand to reason and the said contention deserves to be rejected. 14. On the question of limitation, it is to be pointed out that even according to the respondent, as per the complaint, the cheque has been issued only on 20.7.2015 relating to the dues from the 1st petitioner company and it was deposited. Though it is the case of the petitioners that the cheque was issued in the year 2010 as security and it has been presented in the year 2015 and, therefore, it is barred by limitation, however, this Court go into the merits of the said contention as the same being a question of fact and being a triable issue, which has to be proved on the basis of oral and documentary evidence, this Court is not inclined to venture into the said contention in the present petition u/s. 482 Cr.P.C. Therefore, the question of limitation raised by the petitioners, on the face of it, cannot be sustained for the simple reason that it is the case of the respondent that the cheque was issued only on 20.7.15, whereinafter it was deposited. 15. The pivotal contention raised by the learned senior counsel for the petitioners hinges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a CTS-2010 cheque. The return report of the bank merely states the reason for return as Refer to Drawer . The purpose for which the cheque has been returned has not been spoken to by the bank in unequivocal terms in the return report. Further, there is no distinguishing feature pointed out to show the difference between the two types of cheques. In this backdrop, the circular of the Reserve Bank of India shows that the banking channels, based on the digital signature in the form of Magnetic Ink Character Recognition (MICR), would be in a position to distinguish a non-CTS-2010 cheque from a CTS-2010 cheque. The Court, appreciating an issue u/s. 482 of the Code of Criminal Procedure, would not be justified in giving a decision one way or the other as to the nature of the cheque, which is put in issue by the parties as the same has to be established only at the time of trial by adducing oral and documentary evidence. 19. Further, in the present petition u/s. 482 Cr.P.C., no material with regard to the cheque being given as security or the business arrangement between the petitioners and the respondent is placed. It is also to be pointed out that arbitration proceedings were initia ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
