TaxTMI 
TaxTMI 
2022 (7) TMI 303
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....no.2 on regular interval. In course of time, petitioner's business faced financial setbacks and he was in urgent need of financial assistance and as such, he approached the opposite party no.2 with a request to grant him loan of Rs.30 lakhs for enabling him to revive to his plunging business. 3. The opposite party no.2 had taken into consideration the said proposal and due to good business relationship he afforded the said loan through RTGS on November 2, 2017 from Indian Overseas Bank, Lalbazar Branch to the petitioner's account of Yes Bank, Burrabazar Branch. The said loan was accommodated with a condition that the petitioner would repay the sum within a period of 91 days from the date of issuance of the sum and he will pay interest at the rate of 15% per annum in case of failure to repay within the stipulated period. 4. The petitioner in discharging his liabilities towards the opposite party no.2 had issued an account payee cheque bearing no.791236 dated June 2, 2018 to the tune of Rs.30 lakhs in favour of the opposite party no.2 drawn on Yes Bank Limited and at the time of issuance of cheque the petitioner had requested the opposite party no.2 not to place the same for encash....
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....n reading of the complaint filed by the opposite party no.2, it is clear that the same is merely counterblast to the petitioner's inability to make complete payment and the alleged complaint lodged by opposite party no.2 is out of sheer malice by adding colour of criminality to an issue which involves partial non-performance of business obligations. The complaint has been filed to tarnish the reputation of the petitioner and his company in the business circle and the allegation does not at all constitute an offence punishable under Section 420 of the Indian Penal Code because in order to attract Section 420 of the Indian Penal Code the intention to deceive must be from the very beginning and a mere inability of a person to repay a portion of the sum advanced to him during business transaction would not constitute an offence under Section 420 of the Indian Penal Code. 10. Mr. Sengupta further argued that the allegations leveled in the FIR suffer from antagonistic contradictions and inherent absurdity. Even if the allegation taken to be true, it does not make out any cause of action giving rise to initiation of an investigation under Chapter XII of the Code of Criminal Procedure. He....
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..... Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary". "28. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions". 16. The opposite party no.2 has specifically alleged in his FIR, when the cheque was returned as dishonoured, he requested the petitioner on various occasions for making repayment but the petitioner was trying to avoid his phone calls and also stopped visiting him. It is true that signature of a person may differ for many reasons, like sickness state of mind, old age and some more reasons. It is equally true that in order to constit....
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....ner. 19. In this context I am inclined to refer relevant portion of the statutory judgment of Apex Court in State of Haryana Vs. Bhajan Lal reported in (1992) SCC (Cri) 426 to understand whether this is a fit case where power under section 482 of the code can be invoked, relevant portion of the judgment dealing with the cases where such power can be invoked is reproduced below:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where ....
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....ve facts and circumstances of the case and discussion made above, as the materials available so far discloses prima facie offence against the present petitioner, it would not be proper to quash the proceeding at its threshold exercising power under Section 482 of the Code. 21. The case law cited on behalf of the petitioner, in the case of Sripati Singh (supra) is not applicable in the present case as in the said case there was an assurance of repayment and based on such assurance the appellant presented the cheque for realization but the cheque got dishonoured on the ground of insufficient fund. Accordingly, it was a clear case which attracted Section 138 of the Negotiable Instruments Act but in the present context, it is not a case of dishonoured cheque on the ground of insufficient fund rather the cheque was dishonoured as the signature of the drawer differs and no explanation offered on behalf of the petitioner as to why his signature got differed in the impugned cheque and no attempt was made on his behalf to make payment of admitted loan amount in spite of several requests made by the opposite party no.2 and no attempt has also been made to show that he did not have any disho....