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TMI Blog2022 (4) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... and rejected by the learned JMFC observing that the present case relates to dishonour of cheque, in which on 11.08.2021, the particulars of offence were stated to the accused/petitioners under Section 251 of CrPC, which was denied by him and it was stated that he had given the blank cheque to the respondent firm, which has been misused and thereafter the case was fixed for complainant's evidence. In such circumstances, the present case is a subject matter of evidence, which cannot be decided at this stage without going into merits of the case and accordingly the application of the petitioners was rejected and the case was again fixed for complainant's evidence under Section 254 of CrPC. Applying the principle laid down by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and petitioner No.2 M/s Hariom Trading Pvt. Ltd. The petitioner No.1 G. K. Sons borrowed 21.380 metric tonne M. S. Angle worth ₹ 7,93,717/- from the respondent firm on 09.12.2019 and it was assured that the payment would be made on the very next day, but the petitioner firm has not paid the said amount to the respondent firm and only empty assurances were given that the entire payment would be made after some times. Lastly, on 26.12.2020, cheque of ₹ 9,84,209/- bearing No.001225 at HDFC Bank, Branch City Avenue, In front of Anupam Garden, G.E. Road Branch, Raipur was issued in favour of the respondent firm by the petitioner No.2 M/s Hariom Trading Pvt. Ltd. When the respondent submitted the said cheque for encashment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent as security at the time of purchasing the articles, which has been misused by the respondent and the petitioner has already paid the entire amount during the period May, 2017 to February, 2018 and proof in this respect has been produced by the petitioners by filing leisure account statement, but the said fact has not been considered by the learned JMFC and the application of the petitioners has been rejected, therefore, the present petition may kindly be allowed and the petitioners may kindly be discharged from the above said criminal case. 4. Learned counsel for the respondent supports the impugned order. 5. Heard learned counsel for the parties and perused the material available on record. 6. The petitioners have filed or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent during the period May 2017 to 2018, therefore, the complaint under Section 138 of the NI Act and Section 420 of IPC is not maintainable and accordingly criminal case be closed. The petitioners have also filed copy of statement of leisure account from which payment is said to have been made to the respondent firm. On 26.10.2021 itself, the application of the petitioners has been considered and rejected by the learned JMFC observing that the present case relates to dishonour of cheque, in which on 11.08.2021, the particulars of offence were stated to the accused/petitioners under Section 251 of CrPC, which was denied by him and it was stated that he had given the blank cheque to the respondent firm, which has been misused and therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. Therefore, though a criminal complaint under Section 420 IPC was not sustainable in the facts and circumstances of the instant case, the complaint under section 138 of the N.I Act was maintainable and all contentions and the defence were to be considered during the course of the trial. 8. Applying the principle laid down by the Hon'ble Supreme Court in Sripati Singh (supra) in the present case as well, it is quite vivid that the present complaint case under Section 138 of the NI Act is a summons trial case and the learned Trial Court has rightly held that prima facie application cannot be decided without going into merits of the case in absence of any evidence. This finding of Trial Court is based on correct appreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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