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TMI Blog2022 (2) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ed facts. Therefore, the contention of the learned Counsel for the petitioner that the cheque in question was filled for excess amount other than the liability cannot be gone into at this stage and the same cannot be a ground to quash the proceedings. Considering the judgments of the Apex Court and the fact that the liability is also admitted in one of the letter, whether or not cheque amount exceeds the liability are the disputed facts and the same can be gone into only during the trial and not in a petition filed under section 482 of Cr.P.C. In such view of this matter, merely there is a dispute with regard to the payment of interest and immovable properties have already been mortgaged and proceedings under the SARFAESI Act has also been initiated, those proceedings is no way relevant to quash the proceedings under section 138 of the Negotiable Instruments Act and this petition filed to quash the proceedings is liable to be dismissed. The trial Court is directed to expedite trial and dispose of the case in C.C.No.18 of 2014 within a period of four months from the date of receipt of a copy of this Order - petition dismissed. - Crl.O.P.No.16046 of 2017 & Crl.M.P.Nos.9925 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s granted subject to the payment of ₹ 25 lakhs and the same was also complied. 3. It is further stated that the petitioners periodically paid the dues and the liability has been gradually reduced. Hence, it is his contention that there is no legally enforcible debt subsisting on the date of presentation of the cheque. The present cheque in question is undated cheque which was obtained while sanctioning the loan. The complaint is also silent as to who has issued the cheque on 02.04.2013. It is his contention that the cheque issued in the year 2011 has been used for filing the present case. 4. In addition to the grounds raised in the petition, it is the main contention of the learned Senior Counsel appearing for the petitioner that even the loan sanctioning letter vouch the fact that undated cheques have been collected by the bank. Therefore, the very allegation in the complaint that the cheque was issued on 21.04.2013 for a sum of ₹ 2,90,81,000/- is an after thought and the same has been pressed into service only for maintaining the complaint. Hence, it is contended that the cheque in question has been issued as a security and the same cannot be enforced in the eye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Delhi at New Delhi Sunil Todi and others Vs. State of Gujarat and another reported in 2021 SCC OnLine SC 1174 Sripati Singh [Since Deceased] Through His Son Gaurav Singh Vs. State of Jharkhand and another reported in 2021 SCC OnLine SC 1002 6. The learned Senior Counsel Mr.Om Prakash appearing for the respondent contended that the cheque was issued for due payment of the loan account. The same was dishonoured and a statutory notice was issued for a sum of ₹ 2,90,81,000/-. The statutory notice has not been replied. By a letter dated 22.05.2013, the petitioner has also acknowledged and admitted the liability. It is contended that the circular issued by the Reserve Bank of India is only for banking regulations and it cannot be taken advantage by the petitioner to contend that once account has been classified as NPA, the interest is not chargeable. Hence, submitted that the disputed question of facts cannot be gone into at this stage and it is a matter of trial. Hence, opposed for quashing the complaint. He has also placed reliance on the judgment of the Apex Court in S.Thangamani Vs. R.S.T. Steels reported in 2000 SCC OnLine Mad 924 M.M.T.C. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a wherein with regard to interest application it is stated as follows : Interest Application On an account turning NPA, bank should reverse the interest already charged and not collected by debiting Profit and Loss account and stop further application of interest. However, banks may continue to record such accrued interest in a Memorandum account in their books. For the purpose of computing Gross Advances, interest recorded in the Memorandum account should not be taken into account. The above circular is only the guidelines to the bank how to record the interest in a memorandum of account. Therefore, the contention that the interest cannot be calculated once account is classified as NPA cannot be countenanced. The main contention of the learned counsel for the petitioner is that the cheque given as a security has been filled for excess amount and such cheque cannot be enforced in the eye of law. As indicated above, borrowal and handing over the cheque has not been disputed. Only the quantum of amount payable by the petitioner is disputed. Whereas, the statutory notice issued claiming ₹ 2,90,81,000/- is not disputed and the letter referred above also indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has held that the High Court cannot examine merits of the complaint and merely because the petition contain specific allegation to the contrary, it cannot be said that the cheques cannot be issued for the existing liability and this they have to discharge in the trial. In the above judgment, the Apex Court has clearly held that there is no requirement for the complainant that they must specify that there was subsisting liability. The burden of proving that there was no existing liability is on the respondent and the same has to be discharged in the trial. 11. In the judgment in M/s.Synergy Credit Corporation Limited Vs. M/s.Midland Industries Limited others reported in 2006 SCC OnLine Mad 1225, it is held that merely because the accused had paid the amount, the same will not absolve him from the legally enforceable liability in respect of the portion of the dishonoured cheque amount. In HMT Watches limited Vs. M.A.Abida and another reported in [2015] 11 Supreme Court Cases, the Apex Court has held that whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could be determined only by the trial Curt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the liability is also admitted in one of the letter as discussed above, whether or not cheque amount exceeds the liability are the disputed facts and the same can be gone into only during the trial and not in a petition filed under section 482 of Cr.P.C. In such view of this matter, merely there is a dispute with regard to the payment of interest and immovable properties have already been mortgaged and proceedings under the SARFAESI Act has also been initiated, those proceedings is no way relevant to quash the proceedings under section 138 of the Negotiable Instruments Act and this petition filed to quash the proceedings is liable to be dismissed. 13. Accordingly, this Criminal Original Petition is dismissed. Consequently, connected miscellaneous petitions are closed. The trial Court is directed to expedite trial and dispose of the case in C.C.No.18 of 2014 within a period of four months from the date of receipt of a copy of this Order. 14. After pronouncing the Orders, learned Senior Counsel appearing for the petitioners sought indulgence of this Court to dispense with the personal appearance of the petitioners before the trial Court. 15. Accordingly, personal appear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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