9911796707
TMI Blog2024 (10) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution for an offence under the Act. For the said purposes, the cheque must have been returned unpaid by the banker either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that the cheque exceeds the amount arranged to be paid from that account by an agreement between the account holder and the bank - The complaint, in the present case, does not state that the cheque was dishonoured on account of either of the two grounds on which liability under Section 138 of the NI Act can be made out. A person commits an offence under Section 138 of the NI Act when he draws a cheque from an account maintained by him in a bank for discharge of any debt or any liability and the cheque is returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions to his banker with whom the account is being maintained - In the present case, once the bank account has been attached by an order of the IT department, the same could not have been operated by the petitioners or be called to have been maintained by him. The complaint being CC No. 29073/2016 filed by the respondent before the learned Metropolitan Magistrate for offence under Section 138 of the NI Act along with the consequential proceedings arising therefrom, is quashed - Petition allowed. - HON'BLE MR. JUSTICE AMIT MAHAJAN For the Petitioners Through: Mr. Nikhil Pillai and Ms. Malvi Dedhla, Advs. For the Respondents Through: Mr. Sunil Kumar Gautam, APP for the State Mr. Neeraj Chaudhari, Mr. Akshay Chandra, Mr. Premnath Upadhya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat account by an agreement between the account holder and the bank. 4. He submits that the cheque, in the present case was dishonoured for ostensible reasons which cannot be attributable to the drawer since, the cheque returned due the account being blocked by the IT department and was beyond the control of the drawer company. 5. The learned counsel for the petitioners relies upon the following judgments to buttress his arguments: a) Ceasefire Industries Ltd. v. State : 2017 SCC OnLine Del 8280 b) Onkar Nath Goenka v. Gujarat Lease Finance Ltd. : 2008 SCC OnLine Del 1593 c) Standard Chartered Bank v. State : 2007 SCC OnLine Del 1105 d) Chintan Arvind Kapadia v. State : 2013 SCC OnLine Del 582 e) Yogendra Pratap Singh v. Savitri Pandey : (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deposition of Bank of India s official as CW-I Roshan Kumar recorded on 21.05.2014 and 16.01.2015, wherein he stated that cheque in question is dishonoured on 28.09.2013 due to reason account blocked ; 8.3 IT Department s attachment order whereby the bank account of the drawer company was freezed/blocked; 8.4 Bank of India s letter dated 15.11.2014 stating that the bank account of the drawer company has been frozen by the attachment order of the IT department. 9. Section 138 of the NI Act makes it clear that it is not every return of a cheque unpaid which leads to prosecution for an offence under the Act. For the said purposes, the cheque must have been returned unpaid by the banker either because the amount of money standing to the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied for making out a case under the provision are: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that 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; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (iv) the payee or the holder in due course of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 of the NI Act when he draws a cheque on an account maintained by him for discharge of any debt or liability and the said cheque is returned unpaid for the reason of insufficient funds. In the present case, the account of the drawer company was blocked / frozen by the order of the IT department thus, the said account at the time of dishonour of cheque cannot be held to be maintained in the bank. Drawing a cheque for discharge of any debt or liability from an account which is not maintained by a person for the reason of it being frozen may amount to an offence under other statutes but cannot be termed as an offence under Section 138 of the NI Act. A Coordinate Bench of this Court, in similar circumstance, in the case of Vijay Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
