2023 (5) TMI 799

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....ed a complaint under section 138 of the Negotiable Instruments Act, 1881 contending that the accused No. 1/Company through accused No. 2 and with knowledge and consent of accused no. 3 approached the complainant with request for short term financial facility of Rs. 1,50,00,000/-. Accordingly, the complainant disbursed loan of Rs. 1,50,00,000/-. The accused No. 2 executed demand promissory note in favour of the complainant acknowledging disbursement of amount. Thereafter, the accused No. 1 approached the complainant for renewal cum enhancement of existing facility of Rs. 50,00,000/- which was sanctioned on 26th May 2017. Therefore, total loan disbursed in favour of the accused was to the tune of Rs. 2,00,00,000/-. Towards satisfaction of the....

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....truments Act, 1881, independent cause of action gives rise to filing of independent complaint. If the court is satisfied that the ingredients of section 138 are fulfilled, the learned Magistrate is entitled to issue process. 6. The next submission is that initial loan was Rs. 1,50,00,000/- and the cheques issued which are subject matter of two complaints are of Rs. 1,61,48,178/- and Rs. 1,56,07,312/-, demonstrate that there is no legally recoverable liability. The said submission is in ignorance of paragraph 7 of the complaint which states that in addition to Rs. 1,50,00,000/-, amount of Rs. 50,00,000/- was sanctioned to the complainant. The factum as to whether the total amount of cheque is legally recoverable or not is purely question ....

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.... witnesses on oath. The Court held that the evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses and in suitable cases the Magistrate can examine documents to be satisfied that there are sufficient grounds for proceeding under Section 202." 9. The Apex Court has held that in every case under section 138 of the Negotiable Instruments Act, 1881, it is not necessary that the witnesses should be examined. If the material on record is sufficient to make out prima facie case, inquiry under section 202 can be held in absence of witnesses if complainant has given affidavit of complaint. The impugned order indicates tha....