2011 (9) TMI 937

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.... 2. Pertaining to the cheque in question, in the sum of `4.29 lacs, dated 3.9.2003, drawn on Indian Overseas Bank, Arun Vihar, Noida, U.P., it is asserted in the complaint, in para 5 thereof, as under:- 'That with respect to the installation of 700 mm dia M.S.Pipes, the Accused persons initially identified two crossings, totaling a length of approximately 130 mtr., where the 700 mm dia M.S.Pipes to be supplied by the Accused persons were to be installed. Accordingly, the Accused No.1, in presence of the other accused persons, told the Complainant that a sum of `4.29 lakhs shall be paid as advance and shall be adjustable to the final value of the work carried out." 3. Preceding paragraph No.5, it is stated in paragraph No.3 of t....

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....hout demanding higher amount and that when the cheque was presented, it was returned with the remarks that 'the payment was stopped by the drawer'. 7. Along with the complaint, the notice sent by the complainant, as envisaged by Section 138 of NI Act 1881, as also the reply thereto, was annexed. The two would show that there is a serious dispute between the parties with respect to the work performed by the complainant. 8. What I wish to highlight is that the said correspondence shows a business related dispute. The complaint filed by the complainant itself evidences that the cheque was not issued for any consideration on the date when the cheque was drawn. The cheque was expressedly issued as advance payment. That the cheque w....

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....s in the account. The statutory notice served and its response, which were before the learned Metropolitan Magistrate, have obviously not been perused by the learned Metropolitan Magistrate. If perused, the same would have revealed a business dispute of a serious nature between the parties. That the cheque was dated 3.9.2003 but was presented for encashment on 23.9.2003 also reinforces the pleading in the complaint that the cheque was not for consideration on the date it was drawn. It was towards advance payment for the work yet to be done. 12. I lodge a caveat. A post dated cheque for a debt due but payable in future would have to be dealt with on different principles inasmuch as when the said cheque is drawn towards repayment, it is dr....