TaxTMI 
TaxTMI 
2019 (5) TMI 1876
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....eafter, the complainant has paid Rs. 24,00,000/- by piecemeal payment and when the deal was not finalized, he demanded back the said amount from them and for that, they have agreed to make the payment by notarizing document on 20.09.2016. It is alleged that thereafter, the applicant has demanded Rs. 1,00,000/- for necessary process fees for the loan purpose and, thereafter, he has given Rs. 1,00,000/- to them and thus, he was to get back Rs. 25,00,000/- from the accused, but they did not repay it. It is also alleged that thereafter, the accused have given cheque in the name of the firm which was objected by the complainant insisting that the cheque be given in his personal name, but they have stated that they have no other cheque and, therefore, it has been given in the name of the firm and it was for Rs. 10,00,000/- and he has put his signature. It is alleged that the accused's father has also issued cheque of Rs. 15,00,000/- of the State Bank of India dated 07.01.2017. It is further alleged that the cheque of Rs. 10,00,000/- returned back with an endorsement 'stop payment by the drawer' and, thereafter, after issuance of the notice, he has filed the complaint under Se....
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....ct and for that, the complainant can file a civil suit for recovery of the same, but he has no right to recover the entire amount till the period of two years is over, as agreed in the agreement. 2.6. It is contended that the material alteration has been made by the complainant in the blank cheques and, therefore, under Section 87 of the N.I. Act, the negotiable instrument itself becomes void and it cannot be enforced. On all these grounds, it is submitted that the criminal complaint filed against the present applicant being Criminal Case No. 18614 of 2017 be quashed and set aside. 3. Heard Mr. Hasmukh Gurjar, learned advocate for the applicant, Mr. Arpit Patel, learned advocate for respondent No. 1 and Ms. Monali Bhatt, learned Additional Public Prosecutor for respondent No. 2 at length. Perused the papers available on record. 4. Mr. Hasmukh Gurjar, learned advocate for the applicant has submitted the same facts which are narrated in the memo of application. While referring to the documentary evidence on record and the affidavit filed by the applicant separately, he has submitted that the cheques in question were blank cheques and the cheques have been written by somebody else ....
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....r, reported in (2011) 4 SCC 275; 2. In the case of Shanku Concretes Pvt. Limited Vs. State of Gujarat, reported in 2000 (2) GLR 1705; 3. In the case of Indus Airways Pvt. Ltd. and others Vs. Magnum Aviation Pvt. Ltd. and another, reported in (2014) 12 SCC 539; 4. In the case of Taramanidevi Purushottamdasji Mahota Vs. State of Gujarat and others, reported in 2014 (3) GLR 2611; 5. In the case of John K. Abraham Vs. Simon C. Abraham and another, reported in (2014) 2 SCC 236; 6. In the case of Bharatbhai K. Patel Vs. C.L. Verma and others, reported in 2002 (2) GLR 1713; 5. Per contra, Mr. Arpit Patel, learned advocate for respondent No. 1 has submitted that all the points raised by the applicant are question of facts, which need to be decided by leading evidence and the applicant can put forward his defence in the trial itself. According to him, considering the factual aspects of the case, there are disputed questions of fact and, therefore, the trial is required to be conducted. He has submitted that the impugned cheques issued for existing debt and the agreement is only for the purpose of collateral security. He has submitted that in the application under Section 482 of the Co....
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....ment of the advances after the six months from the date of the agreement cheques are delivered. Some of the such cheques were bounced, for which the complaint is filed. 8. In the case of Indus Airways Pvt. Ltd. and others Vs. Magnum Aviation Pvt. Ltd. (supra), the Apex Court has held and observed in paras-12 and 13 as under:- 12. The interpretation of the expression 'for discharge of any debt or other liability' occurring in Section 138 of the N.I. Act is significant and decisive of the matter. 13. The explanation appended to Section 138 explains the meaning of the expression 'debt or other liability' for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 1....
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....Bharat Vijay Mills/Continental Textile Mills in civil litigation including Mr. C.L. Verma referred hereinabove, provides sufficient rebuttal at this stage. Normally, this Court is supposed to read the averments made in the complaint and at the initial stage of the proceedings, the High Court is not justified in entertaining and accepting the plea that there was no debt or liability. Defence plea cannot be entertained in quashing proceedings. But in the cases where the petitioner is able to show to the Court that there was no existing debt or liability at the time of presentation of the cheque for encashment on the basis of the conduct of the complainant or admissions made by the complainant that may be in other legal proceedings, then in such cases, the proceedings can be terminated and the accused should not be asked to face the trial till it concluded. So, this Court inclined to allow this petition as the petitioner has successfully rebutted the presumption at initial stage and has pointed out the basic infirmity as to maintainability of the proceedings. 11. Since other decisions relied upon by the learned advocate for the applicant are on the same line and with a view to avoid ....
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....grievance of the applicant is that the cheques were issued in the name of the firm and the present complainant has filed the complaint in his personal capacity. On perusal of the notice issued by the complainant to the present accused, it is clearly mentioned therein that he is proprietor of the firm. It also reveals that the notice has been replied by the accused raising various factual aspects. It is also the case of the applicant that the cheques were blank cheques and there were only the signature of the present accused. Now, on perusal of the defence put up by the applicant is that his father has also obtained certain amount on interest from the complainant and the same has been repaid and the other defence raised by the accused is that at the initial stage when the amount received from the complainant, he insisted for blank cheques and, therefore, the blank cheques were given to him after signing. Now, the question of writing on the cheques is concerned, the same is required to be proved or disproved on the evidence that may be led by both the sides. It also reveals from the material on record that the bank has returned back the cheques to the complainant with an endorsement ....