TaxTMI 
TaxTMI 
2017 (4) TMI 70
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....upply of mattresses and furniture. According to the complainant, the applicant herein was one of its customers. Being one of the customers, he had purchased the mattresses and other products on credit. The complainant, thereafter, raised invoices and informed the accused that as on 27th March 2013, an amount of Rs. 76,26,766=00 was due and payable. According to the complainant, after repeated requests and demands, the accused issued a cheque bearing no.029781 dated 30th March 2013 for the amount of Rs. 76,26,776=00 drawn on the ICICI Bank, Surat city Light Party Plot Branch, Surat. The cheque in question was presented by the complainant with its banker SBI, IFB Branch, Bangalore. The cheque came to be dishonoured as the funds in the account maintained by the accused were insufficient. On receipt of the intimation of the dishonour of the cheque, the complainant issued a notice dated 10th April 2013 under Section 138 of the Negotiable Instruments Act. The notice is said to have been received by the accused on 15th April 2013. However, despite the expiry of the statutory time period, the accused failed to make the payment and, therefore, the complaint under Section 138 of the Negotia....
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....ate copy of this letter and return the same to us. If the amount shown above is not in agreement with your books, please indicate the amount as per your records, enclosing the statement of our account in your books, for immediate reconciliation. Please confirm the above balance latest by 15th April 2013. In the event of non-receipt of any reply from your end within the date specified, the above stated balance will be treated by us as correct. Thanking you, Your faithfully, For KURLON LIMITED" The accused replied to the said notice vide letter dated 2nd April 2013 in the following terms : "To, T.Sudhakar Pai (CMD) The M/s.Kurlon Limited Bangalore. We inform you that, Bajarang Sales Proprietor Firm At 79, New Bhatar, Udhna Magdalla Road, Surat, Gujarat, the Distributors of The M/s.Kurlon Limited, Dealing Business with the Tha M/s.Kurlon Limited, As per Bajarang Sales Account's all dues is cleared since last 9 months, As per Our Account Statement, nothing dues from us against the purchase from your company.... this is accepted & Authorize stamping with signed by the authorized persons of M/s.Kurlon Limited Company (ASO SURAT) named Himanshu Bhalala (ABM), Krunal....
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....in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence 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 s....
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.... as well as the observations of this Court in Indus Airways (supra) with reference to the explanation to Section 138 of the Act and the expression "for discharge of any debt or other liability" occurring in Section 138 of the Act. We are of the view that the question whether a post-dated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise. 11. The judgment in Indus Airways (supra) is clearly distinguishable. As already noted, it was held therein that liability arising out of claim for breach of contract under Section 138, which arises on account of dishonour of cheque issued was not by itself at par with criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour of cheque issued for discharge of later liability is clearly covered by the statute in question. Admittedly, on the date of the cheque there was a debt/liability in presenti in terms of the loan agreement, as against the case of Indus Airways (supra) where the purchase order had been cancelled and ....
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....termined 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. 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. [(2008) 13 SCC 678], 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: ....