2022 (11) TMI 1083

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....der section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the "NI Act") titled as Amrit Pal Singh Bedi V International Trenching Pvt. Ltd. & Ors. bearing CC no. 6735/2019 on the allegations that the accused no. 1 i.e. M/s International Trenching Pvt. Ltd. (hereinafter referred to as the "accused no. 1") is engaged in the business of trenching/fibre optic laying and allied services. The accused no. 2 (hereinafter referred to as the "petitioner") and the accused no. 3, namely, Sumit Bhasin (hereinafter referred to as the "accused no. 3") are the Directors of the accused no.1. The accused no. 4, namely, Summy Bhasin (hereinafter referred to as the "accused no. 4") is handling the finances and accounts of the accused no. 1. The petitioner, accused no. 3 and 4 are responsible for day-to-day affairs of the accused no. 1. The petitioner and the accused no. 4 on behalf of the accused no. 1 approached the respondent no. 2 for availing the services for their business in upcoming projects and the respondent no. 2 had provided services from time to time and for which Rs.46,60,000/- was agreed to be paid by the accused no. 1 to the respondent no. 2 on or before 15.07.20....

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....he basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, it he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the NI Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the NI Act, documents produced in support thereof and the verification in the form of affidavit of the....

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....e document and moreover the reason given for the cheque bounce is not covered under section 138 of the NI Act. The perusal of the alleged cheque return memo reflects that the same has not been certified by the Banker under the provisions of the Bankers Book (Evidence) Act, 1891. It is prayed that the complaint bearing no. 6735/2019 and the impugned order qua the petitioner be quashed. 5. The counsel for the petitioner advanced oral arguments on the basis of pleas and grounds as taken in the present petition. The counsel for the petitioner in the brief note submitted in support of the argument, primarily stated that the alleged cheque return memo is an internal document of the bank and is not a cheque return memo for strict sense and on the basis of which, the summoning order cannot be passed. The counsel for the petitioner relied upon the judgment passed by the Himachal Pradesh High Court in Rajinder Singh Verma V Haji BK Manchanmani Cr. Appeal No. 582 of 2017. 6. The perusal of the judgment passed by learned Single Judge of the Himachal Pradesh High Court reflects that he has referred the section 146 of the NI Act to consider the cheque return memo. After referring the secti....

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....acts. Following are the acts which are components of the said offence: (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. 9. The cheque return memo is a memo informing the payee's banker and the payee about the dishonour of a cheque. When the cheque is dishonoured, the drawee bank immediately issues a cheque return memo to the payee's banker mentioning the reason for non-payment. The purpose of the cheque return memo is to give the information of the holder of the cheque that his cheque on presentation could not be encashed due to the variety of reasons as mentioned in the cheque return memo. As per the section 146 of the NI act, the cheque return memo on presentation presumed the fact of dishonour of the cheque unless and until such fact is disapproved. Neither section 138 nor the section 146 of the NI act has prescribed any particular form of cheque return memo. The section 138 of ....