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TMI Blog2022 (3) TMI 1555X X X X Extracts X X X X X X X X Extracts X X X X ..... edings should lead to a ground of harassment to the accused. A document if so unimpeachable is produced, the Court has to look into the same to avoid future harassment to the accused. Therefore, in the considered view of this Court, the cheques that were presented had not yet ripened to be presented as they were on a particular contingency to be presented or they were subject to conditions before presentation. Those conditions admittedly have not come about as on the date the cheques were presented. Therefore, the contingency has not even arrived at. Presenting the cheques and initiating proceedings for dishonor of cheques under the Act only results in harassment to the accused and esoteric satisfaction to the complainant. Petition allowed. - Hon'ble Mr. Justice M. Nagaprasanna For the Appellant : Sri Shivarudrappa Shetkar, Advocate For the Respondent: Sri Jose Sabastian, Advocate ORDER These criminal petitions arise out of three different transactions between the same parties. Therefore, these petitions are taken up together and considered in this common order. 2. The petitioners in all these petitions call in question proceedings in C.C.Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] , HMT WATCHES LIMITED v. M.A.ABIDA AND ANOTHER[(2015) 11 SCC 776] and INDUS AIRWAYS PRIVATE LIMITED AND OTHERS v. MAGNUM AVIATION PRIVATE LIMITED AND ANOTHER [(2014) 12 SCC 539] . 6. On the other hand, the learned counsel representing the respondent would submit that the cheques were in fact handed over for a legally recoverable debt and the presumption under the Act operates once the cheques are issued for such legally recoverable debt. It is a matter for trial in which the petitioners will have to come out clean as the cheques are admittedly dishonoured. He would place reliance upon the judgments in ICDS LIMITED v. BEENA SHABEER AND ANOTHER[(2016) 6 SCC 426], SRIPATI SINGH v. STATE OF JHARKHAND ANOTHER[(2021) SCC Online SC 1002] and SAMPELLY SATYANARAYANA RAO v. INDIAN RENEWABLE ENERGY DEVELOPMENT AGENCY LIMITED[(2016) 10 SCC 458] . 7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. 8. Before embarking upon consideration of registration of crime against the petitioners, it is germane to notice the SA, its conditions and the initiation of legal proceedings against the petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be complied with i.e., conversion for residential purposes before presenting the cheque for realization. The learned counsel for the petitioners submits that the event is yet to come about. The properties are yet to get converted and the learned counsel for the respondent though admits that conversion has not yet happened submits that it was a mistake in the agreement. Conversion generally has to happen at the hands of land owner and not the developer but admits that the agreement is styled in that fashion. 10. The result of violation of clause 6 noticed supra is, registration of crime as the cheques that were presented were dishonoured. Therefore, any mistake that has crept in, according to the submissions of the learned counsel for the respondent cannot now be looked into unless there is novation or alteration of the contract, mutually agreed between the parties. Clause 6 of the SA standing as it is, the cheques had to be presented event on event and every event was linked to the first clause of SA, which was the conversion of properties into residential purpose. The conversion not happening even as on date not being in dispute, the cheques so issued could not have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o held as extracted hereinabove is, if the sum payable on a contingent event then it takes the colour of debt only after the contingency has occurred. Therefore, the contingency in the case on hand had not yet occurred for the complainant to present the cheques. The Apex Court again in SRIPATI SINGH (supra) following earlier judgments holds as follows: 19. In the background of the factual and legal position taken note supra, in the instant facts, the appellant cannot be non suited for proceeding with the complaint filed under Section 138 of N.I. Act merely due to the fact that the cheques presented and dishonoured are shown to have been issued as security, as indicated in the loan agreement. In our opinion, such contention would arise only in a circumstance where the debt has not become recoverable and the cheque issued as security has not matured to be presented for recovery of the amount, if the due date agreed for payment of debt has not arrived. In the instant facts, as noted, the repayment as agreed by the respondent No.2 is during June/July 2015. The cheque has been presented by the appellant for realisation on 20.10.2015. As on the date of presentation of the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation. - For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. . .. . .. .. 15. The above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WATCHES (supra), following the earlier judgments has held as follows: 11. In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others[1], this Court has made following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: - 17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well-known legal principles involved in the matter. xxx xxx xxx 22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal [pic]proceedings would amount to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not admitted between the parties. The High Court further erred in observing that Section 138(b) of the NI Act stood uncomplied with, even though Respondent 1 (accused) had admitted that he replied to the notice issued by the complainant. Also, the fact, as to whether the signatory of demand notice was authorised by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it. 11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. [Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd., (2008) 13 SCC 678 : (2009) 3 SCC (Cri) 824] , this Court has made the following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: (SCC pp. 685-87, paras 17 22) 17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpeachable is produced, the Court has to look into the same to avoid future harassment to the accused. Therefore, in the considered view of this Court, the cheques that were presented had not yet ripened to be presented as they were on a particular contingency to be presented or they were subject to conditions before presentation. Those conditions admittedly have not come about as on the date the cheques were presented. Therefore, the contingency has not even arrived at. Presenting the cheques and initiating proceedings for dishonor of cheques under the Act only results in harassment to the accused and esoteric satisfaction to the complainant. 14. For the aforesaid reasons, I pass the following: ORDER (i) Criminal Petition Nos.6836, 6837 and 6789 of 2020 are allowed. (ii) The proceedings in C.C.Nos.24107 of 2019, 24106 of 2019 24103 of 2019 respectively pending before the XIX Additional Chief Metropolitan Magistrate, Bangalore stand quashed. (iii) The quashment of these proceedings will not come in the way of any pending proceedings between the parties. (iv) The observations made in the course of this order would also not come in the way of any other proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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