TaxTMI 
TaxTMI 
2017 (9) TMI 1499
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.... First Party/vendors, i.e. Mrs. Savita Bhatia, Mr. Rajeev Narula, Mr. Rakesh Narula, Mr. Hitesh Narula, represented by their General Attorney- Shri Praleen Chopra/respondent herein. 3. The petitioner also entered into a Memorandum of Understanding(MOU) dated 01.11.2013 with the vendors, represented by the respondent as their Attorney and by virtue of the said MOU the vendors agreed to sell the right hand side portion of the Third Floor of the property bearing No. 47, North Avenue Road, West Punjabi Bagh, New Delhi admeasuring 1365 square yards, for a total sale consideration of Rs. 7,31,00,000/-(Rupees seven crores thirty one lacs only). Out of the aforesaid total sale consideration the Second Party paid a sum of Rs. 4,50,00,000/-(Rupees four crores fifty lacs only) and thereafter the First Party executed the sale deed in respect of the aforesaid property in favour of the Second Party. 4. The remaining payment of Rs. 2,81,00,000/-(Rupees two crores eighty one lacs only) was to be paid by the Second Party to the First Party within two months from the date of the MOU dated 01.11.2013. Accordingly, the petitioner handed over two cheques bearing Nos. 053369 & 053365 both drawn on....
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....16.12.2014 the learned MM-01 (NI Act)/West Delhi summoned the petitioner/accused for the offence punishable under Section 138 of NI Act. Hence, the present petition. 10. The learned counsel for the petitioner has submitted that the two cheques bearing Nos. 053369 & 053365 both drawn on Union Bank of India, Punjabi Bagh, New Delhi for a sum of Rs. 1,31,00,000/-(Rupees one crores thirty one lacs only) and Rs. 1,50,00,000/-(Rupees one crores fifty lacs only) respectively were handed over to the vendors and the respondent herein solely for security purposes and the respondent without any authorization from the petitioner presented the cheque bearing No. 053369 for encashment. 11. The learned counsel for the petitioner has further submitted that even though as per the terms of the MOU dated 01.11.2013 the said cheques were only security cheques, which were not issued in lieu of any existing legal liability as at the time of issuance of the cheques there was no existing liability or debt on the part of the petitioner. Therefore, the summoning order dated 16.12.2014 is bad in law and fact and is liable to be quashed by this Court under Section 482 Cr.P.C. 12. In support of his....
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....sp;Anr; MANU/DE/1838/2010. 17. The instant petition is arising out of the summoning order dated 16.12.2014 passed in the complaint case C.C. No. 2807/1/14 wherein the petitioner is claiming that the impugned summoning order is bad in law and the complaint is nothing but abuse of process of law. 18. The proceedings under Section 138 read with Section 142 NI Act are undoubtedly criminal proceeding which the respondent/complainant is initiating qua against the present petitioner for the wrongful act on the part of the petitioner. The standard of proof in the criminal proceeding is higher than that of a civil proceeding which thus gives the platform to the respondent/complainant to run criminal as well as civil proceedings parallely. This Court has already said so in the case Sanjay Aggarwal vs. G.S. Tayal & Ors.; Crl. M.C. No. 4144/2009 decided on 11.04.2012 and reliance is also placed on the judgment of the Apex court in the case Sh. Vishnu Dutt Sharma vs. Smt. Daya Sapra, (2009) 13 SCC 729. 19. Section 138 of the Negotiable Instruments, Act 1881 is reproduce as under:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account. -Where any cheque drawn by ....
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....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 the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;" 21. In the instant case the respondent/complainant has filed complaint case for the offence committed under Section 138 NI Act and the learned Metropolitan Magistrate relying upon the complaint which was supported with affidavit, documents placed on record took cognizance under Section 138 NI Act and passed the impugned summoning orders dated 16.12.2014. 22. The contention of the learned senior counsel for the petitioner that by putting the date on the said cheque without obtaining authority from the petitioner amounts to tampering, does not seems to b....
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....the petitioner as the same has been replied by the petitioner vide reply dated 06.05.2014. 27. In the instant case:- (i) the petitioner had issued two post-dated cheques, i.e., bearing Nos. 053369 & 053365 both drawn on Union Bank of India, Punjabi Bagh, New Delhi for a sum of Rs. 1,31,00,000/-(Rupees one crores thirty one lacs only) and Rs. 1,50,00,000/-(Rupees one crores fifty lacs only) respectively, in favour of the respondent/complainant against the balance payment of payment of Rs. 2,81,00,000/- (Rupees two crores eighty one lacs only); (ii) one of the aforesaid post-dated cheques was presented for encashment on 12.02.2014 which is within a period of six months from the date on which it was drawn or within the period of its validity whichever is earlier; (iii) the said cheque was returned dishonoured vide dishonour memo dated 16.02.2014 with the remarks "Funds Insufficient", i.e. in cheque no. 053369 of Rs. 1,31,00,000/-(Rupees one crores thirty one lacs only); (iv) the respondent/complainant had sent legal notice dated 13.03.2014 to the petitioner upon dishonouring of the aforesaid cheque which is within 15 days of the receipt of information by respondent/comp....