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TMI Blog2024 (9) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... ams. The accused/petitioner was appointed as Assistant Professor in the Mathematics Department on 02.06.2022. The terms and conditions of employment of the accused were contained in the 'Service Contract Manual for the Employees' which were duly accepted by the accused and he furnished two cheques bearing no. 121010 and 121011 both drawn on Axis Bank, Morena, MP for a sum of Rs.2,92,800/- and Rs.8,47,200/- respectively in lieu of the said acceptance. It is alleged that in terms of the Service Manual, the complainant had implied authority to fill in the date in the said cheques, in case of any violation of terms of the service manual. 4. The accused failed to report with effect from October, 2022, absented himself from duty, and abandoned the job. The accused thus caused breach of terms and conditions and became liable to pay pre-estimated and pre-determined damages in terms and conditions governing him. 5. The complainant, thereafter, served the accused with a letter dated 07.01.2023 asking him to keep his account funded to honour the cheques in question. 6. According to the complainant, the aforesaid cheques when presented for realisation, were received back dishonoured vide ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues from the petitioner. The amount and date on these cheques were filled by the respondent institute pursuant to the resignation tendered by the petitioner. She alleged that the respondent has falsely claimed to issue the legal notice under Section 138 of the NI Act. She has relied on judgment dated 04.03.2015 in the case of Vivek Rai Vs Aakash Institute : 2015:DHC:2095 wherein this Court found a similar clause requiring submission of undated blank cheques by an employee of the coaching institute to be unconscionable and opposed to public policy, therefore, hit by Section 23 of the Contract Act, 1872 (hereafter 'the Contract Act'). 11. She submitted that the summoning order is erroneous, perverse, bereft of reasons, and has been passed in a mechanical manner, and there is no legally enforceable debt or liability for which the respondent can demand any amount. She further submitted that the same is an abuse of the process of law, the prime argument being that the cheque in question did not represent an amount that could be termed as 'legally enforceable debt or other liability'. She placed reliance on Indus Airways Private Limited and Others vs. Magnum Aviation Private Limited and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question. 18. At the outset, it is relevant to note that this Court can quash the summoning orders issued in NI Act cases in the exercise of its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) if such unimpeachable material is brought forth by the accused persons which indicates that they were not concerned with the issuance of the cheques or that no offence is made out from the admitted facts. The Hon'ble Apex Court in the case of Rathish Babu Unnikrishnan v. State (NCT of Delhi) : 2022 SCC OnLine SC 513 had discussed the scope of interference by the High Court against the issuance of process under the NI Act as under: "8. The issue to be answered here is whether summons and trial notice should have been quashed on the basis of factual defences. The corollary therefrom is what should be the responsibility of the quashing Court and whether it must weigh the evidence presented by the parties, at a pre-trial stage. xxxx xxxx xxxx 16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused and is a matter of trial. The extract from the decision in HMT Watches, which is cited in the decision in Indus Airways is thus: "10. Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. In our opinion, the High Court should not have expressed its view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure, to come to a conclusion that the offence is not made out. The High Court has erred in law in going into the factual aspects of the matter which were not admitted between the parties. xxxx xxxx xxxx 33. At this stage, it would be instructive to note the order of a two judge Bench of this Court in Womb Laboratories Pvt. Ltd. v. Vijay Ahuja. In that case, the High Court had quashed proceedings initiated against the first respondent for offences punishable under Section 138 of the NI Act merely on the basis of the assertion in the complaint that "security cheques were demanded" in response to which the accused had issued three signed blank cheques with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of electricity under a PSA, the presentation of the cheque upon the failure of the buyer to pay is a consequence which would be within the contemplation of the drawer. The cheque, in other words, would in such an instance mature for presentation and, in substance and in effect, is towards a legally enforceable debt or liability. This precisely is the situation in the present case which would negate the submissions of the appellants. xxxx xxxx xxxx 54. In the present case, it is evident that the principal grounds of challenge which have been set up on behalf of the appellants are all matters of defence at the trial. The Magistrate having exercised his discretion, it was not open to the High Court to substitute its discretion. The High Court has in a carefully considered judgment, analysed the submissions of the appellants and for justifiable reasons has come to the conclusion that they are lacking in substance." 20. This Court, in the case Suresh Chandra Goyal v. Amit Singhal : 2015 SCC OnLine Del 9459 had an occasion to deal in detail with the circumstances where the debt in question can be interpreted to be owed by the accused to the complainant for the purpose of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement that it is a security for fulfillment of an obligation to be discharged on a future date itself, is sufficient to read into the arrangement, an agreement that in case of failure of the debtor to make payment on the due date, the security cheque may be presented for payment, i.e. for recovery of the due debt. If that were not so, there would be no purpose of obtaining a security cheque from the debtor. A security cheque is issued by the debtor so that the same may be presented for payment. Otherwise, it would not be a security cheque. As observed above, the MOU (Ex.CW-1/4) does not expressly, or even impliedly states that the security cheques are not to be used to recover the installments, even in case of failure to pay the same by the respondent/debtor. 62. Section 138 of NI Act does not distinguish between a cheque issued by the debtor in discharge of an existing debt or other liability, or a cheque issued as a security cheque on the premise that on the due future date the debt which shall have crystallized by then, shall be paid. So long as there is a debt existing, in respect whereof the cheque in question is issued, in my view, the same would attract Section 138 of NI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner, unauthorizedly left, in the middle of the academic session without any intimation, information, permission or sanction of leave leading to gross violation of terms and conditions incorporated in the service manual. It is the case of the complainant that the petitioner is hence, liable for payment of damages to the complainant. 25. When there is a legal presumption and where facts are contested, it would not be judicious for the Court to separate the wheat from the chaff under the garb of inherent powers. It has been held time and again that the power of quashing criminal proceedings while exercising power under Section 482 of the CrPC should be exercised sparingly and with circumspection. 26. The learned counsel for the petitioner relied on the judgment passed by a coordinate bench of this Court in Vivek Rai v. Aakash Institute (supra), to contend that clauses contained in a similar Service Rule Manual pertaining to security cheques were deemed unconscionable and contrary to public policy under Section 23 of the Indian Contract Act. 27. At this stage, however, it is important to note that the petitioner had entered into a contract with the respondent regarding hi ..... 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