9911796707
TMI Blog2009 (12) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... eting PVC pipes, irrigation system and components etc. Present petitioner No. 2 is the Managing Director of petitioner No. 1 and it is also doing business of PVC pipes, drip irrigation system and components, as dealer of complainant/respondent company. From time to time the petitioners purchased irrigation system and components from the respondent company on credit on the terms and conditions mutually agreed upon. 4. As per the complaint lodged by the respondent, amount of Rs. 50,90,622/- was due and present petitioners/accused issued cheque bearing No. 625844 dated 01.12.2003 for the sum of Rs. 50,90,622/-, drawn on the State Bank of India, Commercial Branch, Securnderabad. When said cheque was presented at Jalgaon Branch of the State Bank of India, same came to be dishonoured and therefore notice dated 23.06.2004 was issued to the present petitioner and same was received by the petitioner on 26.08.2004. Inspite of receipt of said notice, payment was not made and therefore complaint was filed for offence punishable under Section 138 of the Negotiable Instruments Act. 5. The learned advocate Shri B.L. Sagar-Killarikar for the petitioner drew my attention to Exh. B - letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cunderabad, is produced. That was a suit filed by petitioner No. 1 through petitioner No. 2 for settlement of account. The suit was decreed under Order 8 Rule 10 of C.P.C. and some of the documents considered by the Court are letter dated 07.01.2003 regarding issuance of blank cheque referred to above, and the letter dated 30th June, 2004, by which it is stated that on that day balance was Rs. 31 lacs. The Court decreed the suit for accounts. It is argued before me that thus suit for accounts is filed; it is decreed and there is nothing on record to show that the appeal is filed, though, the learned advocate Shri K.C. Sant made statement that the appeal is filed against said decree. 8. It is argued that the relationship of manufacturer and dealer is admitted. It is also admitted that goods were sold on credit. So, the accounts will have to be settled. It is also argued that various documents produced with the writ petition clearly show that time and again the petitioner called upon the respondent to settle the account, but there was no response from the respondents company and misusing the blank cheque issued, the complaint is filed and it is nothing but abuse of process of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See : The Janata Dal etc. v. H.S. Chowdhary and Ors. etc. AIR 1993 SC 892, Dr. Raghubir Saran v. State of Bihar and Anr. AIR 1964 SC 1). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all and therefore there is no substance in para 4. We find the copy of letter at page 31 annexed as part of Exh. C with the petition. 12. Another case cited on behalf of the respondent is the case of Purushottam s/o. Maniklal Gandhi v. Manohar K. Deshmukh and Anr. 2007 (1) Mh.L.J.210. Single Bench of this Court has observed in para 18 of the said case that it is open to a person to sign and deliver a blank or incomplete cheque and is equally open for the holder to fill up blanks and specify the amount therein. This does not amount to any alteration in the cheque, since the cheque was not initially issued for any different specified sum which was changed. In para 19 of the said case it is observed that when a drawer of a cheque delivers a signed cheque, he gives an authority to the holder to put a date of his choice. In this case it is argued that there is no dispute regarding the propositions of law which are correctly mentioned, but wherever blank cheque is given, automatically there is a trust and if it is shown that there is breach of that trust and evidence of misuse of the blank cheque, then Court may not allow abuse of process of law and may refuse to entertain criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt intended by drawer there under, from the drawer and in such case drawer is entitled to recover excess amount. 'Holder in due course' is defined in Section 9 of the Act. Section 20 as quoted above is very clear that holder is not entitled to amount more than intended by the drawer to be paid under the instrument. 14. One more case cited by the advocate for the petitioner is Vinod Tanna and Anr., v. Zaheer Siddiqui and Ors. 2001 (2) Mh.L.J. 714. In that case the Court considered presumption under Section 118 and 138 of the Negotiable Instruments Act. It is observed that presumption under Section 118 of the Act would favour the drawee until the drawer proves contrary that the cheque was not drawn for consideration and until the presumption under Section 118 is not rebutted it will not be open for the drawer to say that Section 138 is not attracted because the cheque was not issued for discharge in whole or in part of any debt and other liability. It is also observed that the petitioner issued blank cheques, whether those were written by the petitioner or those were written beyond instructions of petitioners by respondent No. 2, whether amount due is lesser than the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that case colour TV was purchased on 4th April, 1998 by the respondent from the applicant for total consideration of Rs. 22,760/-. Rs. 5000/- were paid in cash and post dated cheque of Rs. 17,745/- was issued on 08.01.1998. The respondent was supposed to pay balance amount in installment or in accordance with post dated cheque. When the cheque was presented for encashment on due date, it was dishonoured. Notice was issued and thereafter complaint under Section 138 of the Negotiable Instruments Act was filed. In that case, it is observed in para 5 that it was not disputed that on 08.01.1998, a post dated cheque of Rs. 17,745/- was issued. However, on 19.01.1998 what was due was only Rs. 10,975/- and under the circumstances the Court refused to set aside the order of acquittal. It is argued before this Court relying on said ruling that if the amount for which the blank cheque issued was filled in was much higher than the amount due in that case it cannot be said that the cheque was issued towards debt or other liability within meaning of Section 139, and offence under Section 138 of the Negotiable Instruments Act is committed. 18. In the case of State of Karnataka v. L. Munisw ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
