9911796707
TMI Blog2011 (11) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... 001. That thereafter, he put by way of deposit/loan a sum of ₹ 3 lacs, which was accepted by the original accused No. 1 company through original accused No. 2. That thereafter, the complainant resigned as a Director on 11.9.2001 and at that time he asked for returned of ₹ 3 lacs and he was given cheque of ₹ 3 lacs dated 15.3.2002 drawn on Progressive Mercantile Cooperative Bank, Naranpura, Ahmedabad drawn from Bank Account of the original accused No. 1 Company, which was signed by the original accused No. 2. It is further alleged in the said complaint that time and again he was told not to deposit the said cheque and thereafter he was told to deposit the said cheque on 5.9.2002 with an assurance that as and when said cheque was deposited, the same shall be honoured. It is further alleged in the said complaint that accordingly petitioners deposited the said cheque in his Bank Account and by communication dated 14.9.2002 the same has been returned with an endorsement insufficient fund . It is further alleged that thereafter he served a statutory notice upon the accused persons to make the payment under the aforesaid cheque, which was dishonoured and despite the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de clear that the cheque in question was given by way of security and for dishonoured of the same, the offence under Section 138 would not be attracted. Therefore, relying upon the decisions of the Hon'ble Supreme Court in the case of S.P. Chegalvaraya Naidu (dead) by L.rs v. Jaganath (dead) by Lr.s reported in AIR 1994 SC 853, it is requested to allow present application and quash and set aside the impugned complaint/criminal case on the ground of suppression of material facts in the complaint. By making above submissions and relying upon the above decisions, it is requested to allow the present application. 3. Application is opposed by Shri Parikh, learned Advocate for the respondent No. 1-original complainant. It is submitted that a sum of ₹ 3 lacs was given by the complainant by way ' of loan/advance and thereafter the same was returned to the petitioners when the complainant retired as a Director and on settlement of the account and same was issued by the original accused No. 1 signed by accused No. 2 and the said cheque was issued under the MOU dated 11.10.2001. Therefore, it is submitted that the amount/dues were ascertained and merely because the post dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the post dated cheque was issued and one of the cheque was in favour of the original complainant for a sum of ₹ 3 lacs dated 15.3.2002. Therefore, the cheque in question was issued/given to the complainant for ascertain amount of ₹ 3 lacs on settlement of the account. Therefore, it cannot be said that the at the time when the post dated cheque was given there was no ascertain debt or dues. Therefore, even assuming that the said post dated cheque was given by way of security of ascertain dues, in that case, also when the said cheque is dishonoured on the ground that fund insufficient and thereafter even after service of the statutory notice under Section 138 of the N.I. Act, the same is not repaid, a case is made out under Section 138 of the N.I. Act for dishonour of the said cheque. It is to be noted that the said cheque in question for an amount of ₹ 3 lacs dated 15.3.2002 has been issued by the original accused No. 1 company signed by original accused No. 2-petitioners herein. Therefore on and after 15.3.2002 and within valid period of six months, the holder of the cheque entitled to deposit the said cheque and dishonour of the same and on complianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pairs the maintainability. 14. In the case of Maruti Udyog Ltd. v. Narender reported in (1999) 1 SCC 113, this Court has held that, by virtue of Section 139 of the Negotiable Instruments Act, the Court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the contrary is proved. This Court has held that at the initial stage of the proceedings the High Court was not justified in entertaining and accepting a plea that there was no debt or liability and thereby quashing the complaint. 15. A similar view has been taken by this Court in the case of K.N. Beena v. Muniyappan reported in 2001 (7) Scale 331, wherein again it has been held that under Section 139 of the Negotiable Instruments Act the Court has to presume, in a complaint under Section 138, that the cheque had been issued for a debt or liability. 16. There is therefore no requirement that the Complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on basis of averments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of cheque; deposit of the same; dishonour of said cheque; service of statutory notice under Section 138 of the Act and non payment of the cheque amount despite the service of the statutory notice under Section 138 of the Act. Under the circumstances, on the aforesaid ground the complaint is not required to be quashed and set aside. Under the circumstances, the decision relied upon in the case of S.P. Chegalvaraya Naidu (dead) (supra) would not be any assistance to the petitioners in the facts and circumstances of the case. 11. In view of the above and for the reasons stated above, no case is made out to quash and set aside the impugned complaint in exercise of powers under Section 482 of the Code of Criminal Procedure. Hence, present application deserves to be dismissed and is accordingly dismissed. Rule discharged. Ad-interim relief granted earlier stands vacated forthwith. At this stage, Shri J.T. Trivedi, learned Advocate for the petitioners has requested to extend the ad-interim relief granted earlier. In the facts and circumstances of the case and for the reasons stated above when no case is made out to quash and set aside the impugned complaint, the prayer of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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