2020 (5) TMI 605

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....bearing No. 970/2017, 2654/2018, 1653/2017, 1654/2017 and 1463/2018 U/s 138 of the NI Act pending before Ms. Amardeep Kaur, Metropolitan Magistrate, Patiala House Courts, Delhi. 2. In brief, the facts of the case are that the respondent No. 2 company is engaged in trade and trading of various minerals and food-grains which are purchased from different countries. The petitioner was appointed a Director in the affairs of respondent No. 2 on 1.11.2003 and continued till 18.06.2010 when he tendered his resignation and completed all the formalities with the Registrar of Companies. 3. It is averred that pursuant to the agreement(s) between respondent No. 2 company and the respondent No. 1, respondent No. 2 company availed certain financial ....

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....ated 28.03.2018 was pleased to direct all such cases to transfer and listed and tried by one Court. It is averred that during the pendency of the complaints, the respondent No. 2 company discovered that respondent No. 1 had received a sum of 5 Million US Dollars from one of the debtor(s) of respondent No. 2 Company. The receipt of such amount by respondent No. 1 is duly recorded and accepted in the charge sheet filed by the CBI dated 23.12.2009. 7. Based on the aforesaid investigation report of the CBI, respondent No. 2 company and its directors filed an application before the court of Ld. MM praying that the cheque(s) for the equivalent amount may be returned to respondent No. 2 company and corresponding criminal complaint(s) be duly wi....

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....its that it is the settled law that it is the discretion of the creditor to apply the money so received to any lawful recoverable debt. He further argued that there was no such directions from the side of the respondent No. 2 company of whose petitioner is one of the directors, to apply the sum of 5 million US Dollars to a particular debt, more specifically against the cheques in respect of which the complaints U/s 138 NI Act are pending. 12. Section 60 of the Indian Contract Act, 1872 reads as follows : "60. Application of payment where debt to be discharged is not indicated.- Where the debtor has omitted to intimate, and there are no other circumstances indicating to which debt the payment is to be applied, the creditor may ap....