TaxTMI 
TaxTMI 
2019 (10) TMI 362
X X X X Extracts X X X X
X X X X Extracts X X X X
....de by their learned counsel. 4. Vide the impugned order dated 01.05.2019, the learned Trial Court after having taken into consideration the complaint filed by the complainant i.e. the respondent herein as well as the affidavit tendered in pre-summoning evidence and documents submitted with the complaint which were duly exhibited, taking into account also the verification of the averments made in the complaint and the documents produced vide the affidavit of evidence, observed to the effect that there was sufficient ground to proceed further against the proprietor accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 i.e. against the petitioner no.2 herein, though it was specifically observed that there was no ground for summoning the proprietorship firm as it was a non juristic personality. 5. The Criminal Complaint no. 6337/2019 filed by the complainant i.e. the respondent herein alleged vide paragraph Nos. 3 to 12 thereof to the effect:- "3. That Accused No.2 is the sole proprietor and authorized signatory of the sole Proprietorship concern Accused No.1 namely M/s Goutam Shoe Store having its office at address stated in the me....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e accused for avoiding the discharge of its legal liability towards the complainant company and has thus committed an offence punishable under section 138 of the Negotiable Instruments Act, 1881. 7. That the Accused had issued the Cheque in discharge of his liability on account of the footwear supplied by the Complainant in line with invoices duly raised. The accused person is liable to pay the amounts of the dishonoured Cheque detailed above, besides paying interest thereon @24% per annum. 8. That fact that the Cheque has been dishonoured was brought to the notice of the accused when the Complainant got a legal notice issued by its lawyer, dated 27.03.2019 (Dispatched on 28.03.2019), as contemplated in Section 138 of the Negotiable Instruments Act, 1881, to the Accused. The notices were sent by Speed Post as well as Registered Post. 9. It is stated that the Legal Notice was duly received by the accused on 30.03.2019 via speed post and on 02.04.2019 via registered post, but the accused chose to ignore the said legal notice and didn't pay the aforementioned amount to the complainant within the stipulated period prescribed under the Negotiable Instrumen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....so in receipt of the letter dated 22.08.2017 sent by the petitioners, wherein it had been stated that their account number had changed to 09010400000186 but despite the same, the respondent in a malafide manner had presented the cheque for encashment, which was drawn from the previous account as a security cheque and that the respondent having knowledge that the account on which the cheque was drawn by the petitioners had been frozen, the complaint that had been filed by the respondent regarding dishonour of the cheque is devoid of merit and is liable to be dismissed. 8. Reliance has thus been placed on behalf of the petitioners on the verdict of the Hon'ble Supreme Court in "Jugesh Sehgal Vs. Shamsher Singh Gogi" (2009) 14 SCC 683 and the verdict of this Court in "M/s. Ceasefire Industries Ltd. Vs. State & Ors." in Crl.L.P. 51/2017 to submit that where the complainant in that case was aware that the account on which the cheque was drawn was frozen, the complaint regarding the dishonor of the cheque or insufficiency of the funds was liable to be dismissed. 9. On behalf of the respondent, it was submitted by the learned counsel for the respondent that the aspect of receipt of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 37. The fact that the appellant complainant might have been an Income Tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-accused should....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o be paid from that account by an agreement made with the bank; (v) 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; (vi) 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. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.", does not in any manner aid the petitioners, in as much as it is apparent that the factum of the closure of the bank account from which the cheque was drawn has not even been mentioned in the purported letter dated 22.08.2017 issued by the petitioners to the respondent, which letter reads to the effect:- Ref. No...... Date 22/8/2017 To The G.M (Sales &....