2019 (7) TMI 1232

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.... 2. O R D E R In the above captioned six petitions quashing of complaints under Section 138 of Negotiable Instruments Act, 1881 and the summoning orders was sought initially on the ground that the cheques in question were issued as security cheques. The factual background of this case emerging from the Demand Notice of 6th December, 2013 sent by respondent-complainant to petitioner is as under:- 2. "That in lieu of the business correspondence between you and my client, my client company had sent payments to you through RTGS and in discharge of your part liability towards my client you addresses no. 3 being the Director of addressee no. 1 and n connivance, consent and knowledge of addressee no. 2 to 4 and 5 issued the following cheques ....

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....against this specific MOU. Similarly, another three no. cheques bearing no. 018110, 018111 & 018112 were handed over to your client against second MOU (Final proposal for Trading) entered on 1st Jan. 2013 for trading & export of iron ore. This business venture also could not mature. As such your client was also supposed to return back all these three no. security cheques". On the basis of respondent's complaints (CC No. 56/2014, 57/2014 & 58/2014) under Section 138 of Negotiable Instruments Act, 1881 pre-summoning evidence, trial court vide impugned order has summoned petitioners. Quashing of impugned complaints and summoning order of 14th February, 2014 is sought by petitioners while asserting as under:- A. "The subject cheques were ....

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....Allahabad High Court in 'Akash Gupta and 11 Others Vs. State of U.P. and Another was handed over to the Court by petitioner's counsel during the course of hearing, to submit that FIR lodged by respondent-complainant herein for the offence of cheating, forgery etc against petitioners relating to MoUs in question has been quashed. However, while concluding his submissions, learned Senior counsel for petitioners had confined his submissions to impugned complaints not disclosing the nature of business transaction, quantum of liability and the purpose for which his cheques were issued. Thus, it was submitted that in the absence of averments on the aforesaid vital aspects, it cannot be said that there was existence of legally enforceable debt or ....

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....15 SCC 693, Supreme Court has declared that in the absence of requisite pleadings in respect of the transaction concerned, quashing of the complaint of 138 of NI Act is justified. In the instant case, to assert the necessary ingredients of existing debt or liability, it is required to be averred in a complaint of Section 138 of NI Act, as to what is the factual basis to show existing debt or liability. All that has been said in the complaints in question and the pre-summoning evidence is as under:- "3. That complainant and accused were known to each other and both parties had substantial business transactions and in lieu of the business correspondence and financial transactions complainant company had sent payments to accused persons th....