AI Drafter 
TaxTMI 
TaxTMI 
2017 (7) TMI 179
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....343/16. 2. The brief facts as alleged in the complaints filed under Section 138 of the Negotiable Instruments Act, 1881 by the respondent/complainant-Bank are that the petitioner had availed the OCC/OD limit of Rs. 50,00,000/- (Rupees Fifty Lakhs Only) from the respondent/complainant-Bank since the year 2005. It is further alleged that the petitioner failed to adhere to the financial disciple and the loan were classified as NPA. Thereafter, the petitioner approached the respondent/complainant-Bank for settlement vide letters dated 09.03.2007 and 28.05.2007 and had issued certain cheques for repayment of the outstanding dues. The said cheques on presentation got dishonoured with remarks "insufficient funds" and the details of the said cheques are reproduced as under:- Sr.No. Cheque No. Amount Date of Issuance Return Date Remarks Legal Notice Issued by the petitioner Jai Kishan Basoya. In CC. No. 535339/2016 1. 067782 Rs. 2,50,000/- 26.08.2007 29.08.2007 insufficient funds 03.09.2007 2. 067783 Rs. 2,50,000/- 30.08.2007 31.08.2007 insufficient funds 03.09.2007 In CC. No. 535340/2016 3. 067780 Rs. 2,50,....
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....ment and whether an appeal being a statutory right of the convict can be ignored by the appellate Court merely on the request of the counsel or otherwise for leniency on the point of substantive sentence on imprisonment? 7. The learned counsel for the petitioner has further submitted that the cheques in question were given under a proposal for settlement to the respondent/complainant-Bank and the appellate Court committed a mistake of law by awarding sentences separately and to run the said sentences consecutively in three cases between the same parties under single loan transaction and not concurrently. Reliance is placed on the following judgments:- 1) Lalit Kumar Sharma and Another vs. State of Uttar Pradesh and Another; (2008) 5 SCC 638. 2) V.K. Bansal vs. State of Haryana and Another; (2013) 7 SCC 211. 3) Benson vs. State of Kerala; MANU/SC/177/2016. 4) Shyam Pal vs. Dayawati Besoya and Ors.; MANU/SC/1363/2016. 5) Pankaj Kumar vs. Sunil Kumar Vaid; MANU/DE/3252/2011. 6) Thakur Arora vs. The State NCT of Delhi and Anr.; MANU/DE/1549/2009. 7) Nusun Genetic Research Ltd. and Ors. vs. The State of Telengana and Ors.; MANU/AP/0868/2015. 8. The learned cou....
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....nsel for the respondent/complainant-Bank has further submitted that the respondent/complainant-Bank had established its case against the petitioner under Section 138 NI Act beyond doubt whereas the petitioner has even failed to rebut the presumption in favour respondent/complainant-Bank. The petitioner has admitted the cheques in question, the dishonor of cheques are a matter of record, service of legal notices were effected on the petitioner which he has admitted in the crossexamination and the question of legally recoverable debt was also answered in positive by the petitioner himself. Therefore, the presumption under Sections 139/118(a) NI Act was applicable to the facts of the present case. Moreover, the petitioner is estopped from raising any plea on merits before this Court as the petitioner had not challenged the judgment of conviction passed by the trial Court and only prayed for leniency on the point of substantive sentence of imprisonment before the appellate Court therefore, the present revision petitions are liable to be dismissed for want of any merit. Reliance is placed of the judgments of the Hon'ble Supreme Court in the cases A.K. Vijaya Kumar vs. R. Mohan; MANU....
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....on 138 NI Act and passed the summoning orders dated 22.09.2007 and subsequently, the learned Metropolitan Magistrate framed notices vide orders dated 01.08.2013 under Section 251 Cr.P.C. 17. In the instant case issuance of the cheques is not disputed by the petitioner. There is no dispute that the cheques in question belongs to the petitioner and the signatures on the same are made by him. 18. Furthermore, the argument of the learned counsel for the petitioner that the cheques issued were given under a proposal for settlement and reliance on the judgments Lalit Kumar Sharma (supra), V.K. Bansal (supra), Benson (supra), Shyam Pal (supra), Pankaj Kumar (supra), Thakur Arora (supra) and Nusun Genetic Research Ltd. (supra) is not convincing as in the instant case the cheques issued by the petitioner were in consequence of the OCC/OD limit of Rs. 50,00,000/- availed by the petitioner from the respondent/complainant-Bank which makes a legally enforceable liability qua against the petitioner. The reliance is placed on the judgment in the case Sampelly Satyanarayana Rao (supra) wherein the distinction has been drawn by the Apex Court which is reproduced as under:- "7. It will be a....
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....on of this Court in Indus Airways Private Limited v. Magnum Aviation Private Limited MANU/SC/0288/2014 : (2014) 12 SCC 539, on which strong reliance has been placed by learned Counsel for the Appellant. The question therein was whether post-dated cheque issued by way of advance payment for a purchase order could be considered for discharge of legally enforceable debt. The cheque was issued by way of advance payment for the purchase order but the purchase order was cancelled and payment of the cheque was stopped. This Court held that while the purchaser may be liable for breach of the contract, when a contract provides that the purchaser has to pay in advance and cheque towards advance payment is dishonoured, it will not give rise to criminal liability Under Section 138 of the Act. Issuance of cheque towards advance payment could not be considered as discharge of any subsisting liability. View to this effect of the Andhra Pradesh High Court in Swastik Coaters (P) Ltd. v. Deepak Bros. (1997) Crl. LJ 1942 (AP), Madras High Court in Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd. (1999) 1 CTC 6 (Mad), Gujarat High Court in Shanku Concretes (P) Ltd. v. State of Gujarat (2000....
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....was found that the cheque had not been issued for discharge of liability but as advance for the purchase order which was cancelled. Keeping in mind this fine but real distinction, the said judgment cannot be applied to a case of present nature where the cheque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment of installments was also described as "security" in the loan agreement. In applying the judgment in Indus Airways (supra), one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque. 13. Crucial question to determine applicability of Section 138 of the Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court. 14. In Balaji Seafoods (supra), the High Court n....
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....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. *** 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 proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immed....
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....llant. Dishonour of cheque in the present case being for discharge of existing liability is covered by Section 138 of the Act, as rightly held by the High Court." 19. In the instant case:- 1) the petitioner had issued six cheques, i.e. cheque no. 067782 of Rs. 2,50,000/- on 26.08.2007, cheque no. 067783 of Rs. 2,50,000/- on 30.08.2007, cheque no. 067780 of Rs. 2,50,000/- on 26.07.2007, cheque no. 067781 of Rs. 5,00,000/- on 30.07.2007, cheque no. 067777 of Rs. 5,00,000/- 0n 26.04.2007 and cheque no. 067776 of Rs. 2,50,000/- on 27.04.2007, in favour of the respondent/complainant-Bank; 2) the aforesaid cheques were presented for encashment within a period of six months from the date on which they were drawn or within the period of their validity whichever is earlier; 3) the cheques were returned dishonoured with the remarks "Insufficient Funds" vide dishonour memo dated 29.08.2007 in cheque no. 067782 of Rs. 2,50,000/- , dated 31.08.2007 cheque no. 067783 of Rs. 2,50,000/-, dated 03.08.2007 cheque no. 067780 of Rs. 2,50,000/-, dated 03.08.2007 cheque no. 067781 of Rs. 5,00,000/, dated 25.07.2007 cheque no. 067777 of Rs. 5,00,000/- and dated 25.07.2007 cheque no. 067776 of....
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....with a remark 'insufficient funds' the legal demand notices were issued on 03.09.2007 and in C.C.No. 535343/16 the cheques were dishonoured vide return memo dated 25.07.2007 with a remark 'insufficient funds' and the legal demand notices were issued on 02.08.2007. The issuance of legal demand notices by the respondent/complainant-Bank to the petitioner is not disputed between the parties. It is also not in dispute that the payment so demanded was made by the petitioner within the stipulated period or subsequent period till date which attracts conviction under Section 138 of the Negotiable Instruments, Act, 1881. 22. The aforesaid six cheques issued by the petitioner to the respondent/complainant-Bank were to meet their liability for the OCC/OD limit of Rs. 50,00,000/- availed by him and the contention of the learned counsel for the petitioner that the it forms part of one single transaction giving rise to one cause of action and the same could not be said to be distinct offences committed in each of the complaint cases to attract the provisions of Section 138 of the Negotiable Instruments, Act having different cause of action is not convincing as there is no plea....
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....ion under Section 357(3) of the Cr.P.C. could have increased the fine amount twice the cheque amount under Section 138 of the N.I. Act, whereas the learned Metropolitan Magistrate has awarded the compensation of only Rs. 1 lakhs in each complaint cases which shows nothing biased/adverse qua against the petitioner exist in the factual parametric of the present revision petitions. The Apex Court has also held that the Court can impose sentence in default of payment of compensation awarded, reliance could be placed on the judgments Hari Singh vs. Sukhbir Singh And Others; 1988 4 SCC 551 and Suganthi Suresh Kumar vs. Jagdeeshan; 2002 2 SCC 420. 28. Section 427 of The Code Of Criminal Procedure, 1973 is reproduced as under:- "427. Sentence on offender already sentenced for another offence. (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence: Prov....