2024 (6) TMI 701

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....ummoned as an accused in the aforesaid complaint case instituted under Sections 138/142 read with Section 117 NI Act. 2. Facts, as discernible from the record, are that the respondent/complainant had approached the petitioner/accused and placed an order for supply of rubber and smoked sheet. In this regard, the petitioner raised an invoice of Rs.22,40,000/- which was paid by the respondent through RTGS. However, the petitioner failed to supply the aforesaid goods and in order to refund the payment made, issued a (post-dated) cheque bearing No. 017487 dated 21.03.2020 drawn on Indian Overseas Bank for the aforesaid amount of Rs.22,40,000/-. It is further stated that in between, the petitioner made payment of an amount of Rs.7,50,000/- on ....

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.... cheque and failure to do the same would result in a situation wherein the cheque would not represent a legally enforceable debt at the time of its presentation/encashment. In the present case, no such endorsement has been carried out by the respondent and therefore the presentation and subsequent dishonour of the subject cheque does not constitute the offence under Section 138 NI Act. 4. Learned counsel for the respondent, on the other hand, has resisted the present petition. He submits that the summoning order has been passed after due consideration of the facts and circumstances of the case. Further, while acknowledging the factum of part payment, he contends that the demand notice issued to the petitioner was only w.r.t the balance r....

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....resented for encashment of the balance amount is dishonoured, then the drawee can take recourse to the provisions of Section 138. Thus, when a part-payment of the debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented for encashment without recording the part-payment. If the unendorsed cheque is dishonoured on presentation, the offence under Section 138 would not be attracted since the cheque does not represent a legally enforceable debt at the time of encashment. xxx 34.2 If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed up....

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.... question was issued. If it is held that the expression "amount of money" would necessarily mean the amount of cheque in every case, the drawer of the cheque would be required to make arrangement for more than the admitted amount payable by him to the payee of the cheque. In case he is not able to make arrangement for the whole of the amount of the cheque, he would be guilty of the offence punishable under Section 138 of Negotiable Instruments Act. Obviously this could not have been the intention of the legislature to make a person liable to punishment even if he has made arrangements necessary for payment of the amount which is actually payable by him. If the drawer of the cheque is made to pay more than the amount actually payable by him,....