TaxTMI 
TaxTMI 
TaxTMI 
2022 (4) TMI 762
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.... are not attracted and, therefore on this ground, this Court may quash and set aside the impugned complaint. At this stage, learned advocate would submit that even as per the averments made in the impugned complaint, an amount was given by the complainant in the year 2016 to the applicants herein and the disputed cheques were issued in the year 2021 and thus, when the debt is not legally enforceable, the complaint filed under Section 138 of the NI Act would not be maintainable. In support of the said contention, learned advocate has referred to the promissory note, which is placed on record at Page No.30 of the compilation. It is submitted that the said promissory note is executed on 25.11.2016, wherein there is reference with regard to the disputed cheques. Learned advocate has placed reliance upon the decision rendered by the Delhi High Court in case of Vijay Polymers (Pvt) Ltd. Vs. Vinnay Aggarwal delivered in Criminal Misc. Case No.1682/2008 decided by an order dated 24.04.2009. It is submitted that issue involved in the present case is squarely covered by the said decision. 4. Learned advocate has, thereafter, contended that the disputed cheques were given by way of security ....
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....or a specific period/ time. It is further stated in the impugned complaint that the applicant nos.2 and 3 have agreed that they will pay interest at the rate of 12% p.a. regularly and as and when the complainant requires the said amount, the same will be returned immediately by the accused persons. Even promissory note was also executed by the applicants, which is placed on record at Page No.30 of the compilation. In the said promissory note, it is specifically stated that the accused - applicants will repay the amount of Rs. 34,50,000/- with interest at the rate of 12% p.a. Thus from the record, it is clear that there was a transaction between the parties and the complainant had given the aforesaid amount, for which, it was agreed that the accused will pay interest at the rate of 12% p.a. Thus in the facts of the present case, it cannot be said that the disputed cheques have been issued for the debt, which is not legally enforceable as contended by learned advocate for the applicants. It is pertinent to note that the complainant had not given amount of Rs. 34,50,000/- for a specific period. As observed hereinabove, the complainant has specifically averred in the impugned complaint....
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.... the accused that the entire payment will be cleared very shortly. [5] That again after great persuasion from the complainant the accused no. 2 issued one cheque bearing no.350562 dated 05-05-2007 drawn on ICICI Bank Limited, Punjabi Bagh branch, New Delhi for a sum of Rs. 50,000/- towards the part payment against the outstanding dues towards the accused. That the complainant presented the said cheque with the banker but the same was returned unpaid by the accused banker with the remarks "Funds Insufficient" vide memo dated 07-05- 2007. The complainant contacted the accused and the accused requested the complainant to present the same after some time. The complainant again presented the above cheque with his banker but the same was again returned unpaid by the accused's banker with the remarks "Funds Insufficient" as per memo dated 09-10-2007 of the accused bank and as per memo dated 12-10-2007 the complainant's bank which was received by the complainant on 15-10-2007." Thus, the facts of the present case are different and, therefore, the aforesaid decision rendered by the Delhi High Court would not render any assistance to the present applicants. 10. In case before the....
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.... statutory notice under Sec. 138 of the N.I. Act, the same is not repaid, a case is made out under Sec. 138 of the N.I. Act for dishonour of the said cheque. It is to be noted that the said cheque in question for an amount of Rs. 3 lacs dated 15.3.2002 has been issued by the original accused No. 1 company signed by original accused No. 2- petitioners herein. Therefore on and after 15.3.2002 and within valid period of six months, the holder of the cheque entitled to deposit the said cheque and dishonour of the same and on compliance of other requirement of under Sec. 138 of the N.I. Act, it can be said that case under Sec. 138 of the Act is made out. Merely because, the said cheque was post dated cheque and/or given by way security it cannot be said that for dishonour of the same a case under Sec. 138 of the Act is not made out otherwise it will be given a premium to such a dishonest person who has given post dated cheque for ascertained amount with a promise that as and when in future the same is deposited, the same shall be honoured. 10. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of M.S. Narayana Menon @ Mani (supra) is concerne....