TaxTMI 
TaxTMI 
2025 (4) TMI 1107
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....gnizance order dated 20.06.2019 emanating therefrom, pending before the learned Metropolitan Magistrate-03 (NW), Rohini, Delhi (hereinafter 'petition no. 1'); and ii) CRL. M.C. 8002/2023 is filed challenging and seeking to quash the Complaint Case no. 3298/2019 under Sections 138, 141 and 142 of the Act and the summoning and cognizance order dated 06.03.2019 emanating therefrom, pending before the learned Metropolitan Magistrate-03 (NW), Rohini, Delhi (hereinafter referred to as 'petition no. 2'). 2. For the sake of brevity and convenience, petitioner-Mr. Manoj Goyal in CRL.M.C. 7912/2023 and CRL.M.C. 8002/2023 will be referred to as 'petitioner no. 1.' Petitioner- Ms. Kavita Rani Goyal in CRL. M.C. 7912/2023 and will be referred to as 'petitioner no. 2', and the petitioner-M/s MGI Developers and Promoters in CRL.M.C. 8002/2023 will be referred to as the 'petitioner firm.' AVERMENTS IN THE COMPLAINT CASES 3. In petition no. 1, i.e., CRL.M.C. 7912/2023, the respondent herein filed a complaint dated 25.01.2019 against petitioner no. 1 and petitioner no. 2 for the offences punishable under Sections 138, 141 and 142 of the Act. Averments made in the complaint for the ....
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....ue bearing no. 057140, dated 30-09-2018 for Rs. 1,72,21,200/- (Rupees One Crore Seventy Two Lacs Twenty One Thousand Two Hundred Only) and a cheque no.057141, dated 30/09/2018 for Rs. 35,00,000/-(Rupees Thirty Five Lacs Only) but they told the complainant that there are some financial constraints in his firm till first week of December, 2018 but they are issuing two cheques more cheques from their personal bank account towards the personal gurantee i.e. cheque bearing no. 114256, dated 30-09-2018 for Rs. 1,72,21,200/- (Rupees One Crore Seventy Two Lacs Twenty One Thousand Two Hundred Only) and a cheque no. 114257, dated 30/09/2018 for Rs. 35,00,000/-(Rupees Thirty Five Lacs Only) both drawn on Central Bank of India, Sehani Branch, Meerut Road, Gaziabad, U.P., in case the complainant wishes to withdraw his money prior to 15/12/2018 then he can use their personal cheques else after 15/12/2018 money would be realised from the cheques of the firm. 7. That in the terms of the Agreement to sell and discussion dated 30/09/2018, after consultation with accused no. 1, the complainant presented aforesaid cheques on 05/12/2018 i.e. cheque bearing no. 114256, dated 30-09-2018 for Rs. ....
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....pt of this notice. The notice has been duly served upon the accused persons. The accused persons did not make the payment of the aforesaid cheques amount as demanded in the said notice. 11. That the accused persons despite of the service of the said notice has failed to remit the payment due under the said cheques and/or this outstanding amount and as such have committed offence under section 138, 141 and 142 of the Banking Public Financial Institution and Negotiable Instrument Act, as amended up to date apart from other offences under other provisions of law. 12. That the cause of action arose at Delhi, where the cheques in question was received, the bank of the complainant falls within jurisdiction of this Hon'ble Court and the amount was also payable at Delhi and the offence has been committed within the jurisdiction of this Hon'ble Court and hence this Hon'ble Court has got the jurisdiction to entertain and try the present complaint. 13. That the cause of action for filing the complaint arose after the expiry of the period of 15 days from the service of the legal notice as the accused have failed to remit the payment demanded in the legal ....
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....id commercial units till 30/09/2018 and further fails in returning his money alongwith appreciation amount then would issue cheques for the amount invested and appreciation amount from their personal bank account. 6. That when the accused persons could not execute the Sale Deed till 30/09/2018, in the terms of the Agreement to Sell, they in order to discharge their abovesaid liability towards complainant, issued two cheques i.e. cheque bearing no. 057140, dated 30-09-2018 for Rs. 1,72,21,200/- (Rupees One Crore Seventy Two Lacs Twenty One Thousand Two Hundred Only) and a cheque no.057141, dated 30/09/2018 for Rs. 35,00,000/-(Rupees Thirty Five Lacs Only) both drawn on Central Bank of India, Sehani Branch, Meerut Road, Gaziabad, U.P., in favour of complainant to clear his part liability towards the complainant. 7. That in the terms of the Agreement to sell and after consultation with accused no. 2, the complainant presented aforesaid cheques through his banker i.e., ESAF Bank Ltd. Sec. 7, Rohini, Delhi to banker of accused for realisation, but to the utter surprise of complainant aforesaid cheques were dishonoured by the banker of accused for the "Funds Insufficien....
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....int. 12. That the cause of action for filing the complaint arose after the expiry of the period of 15 days from the service of the legal notice as the accused have failed to remit the payment demanded in the legal notice against the dishonoured cheque." SUBMISSIONS ON BEHALF OF THE PETITIONERS 5.1. Learned Senior Counsel appearing on behalf of the petitioners submitted that the agreement to sell was for a period of 2 years and as per the clause 7c of the said agreement, in case of breach of the agreement, i.e., on failure to hand-over the commercial units to the respondent, a post-dated cheque for a sum of Rs. 35,00,000/- (Rupees thirty five lakhs only) bearing no. 057141 dated 30.09.2018 (hereinafter referred to as the 'appreciation money') was to be encashed by the respondent, over and above Rs. 1,72,21,200/- (Rupees one crore seventy two lakhs twenty one thousands and two hundred) (hereinafter referred to as 'the principal amount',) which was given to the respondent by petitioner no. 1 vide a post-dated cheque bearing no. 057140 dated 30.09.2018. It was submitted that without any liability or debt, the said post-dated cheques have been misused by the respondent. I....
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....y cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability." 5.2. It was further submitted that as per the entries made by petitioner no. 1, the respondent had invested an amount of Rs. 66,50,000/- (Rupees sixty-six lakhs and fifty thousands only), whereas petitioner no. 1 had repaid an amount of Rs. 97,00,000/- (Rupees ninety-seven lakhs only) in the names of various family members of the respondent and therefore no liability was existing at the time of presentation of the said cheques. 5.3. Learned Senior Counsel for the petitioners submitted that an arbitration petition bearing no. 273/2023 is already pending before a Coordinate Bench of this Court for alleged violation of the same agreement to sell dated 07.11.2016. On this account, it is submitted that the subject matter of the said agreement is sub judice in the arbitration petition before the said Bench. Learned Senior Counsel for the petitioners submitted that the pendency of the arbitration proceedings and the present complaints are violative of Article 20 of the Constitution of India, leading to multiple prosecutions on the same cause of action. 5.4. ....
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....nce but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 5.5. Learned Senior Counsel further argued that no specific averment has been made qua petitioner no. 1 in his capacity as the proprietor....
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.... Before summoning an accused under Section 138 of the Act, the Magistrate is expected to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and then to proceed further with proper application of mind to the legal principles on the issue. Impliedly, it is necessary for the courts to ensure strict compliance with the statutory requirements as well as settled principles of law before making a person vicariously liable. 13. The superior courts should maintain purity in the administration of justice and should not allow abuse of the process of court. Looking at the facts of the present case in the light of settled principles of law, we are of the view that this is a fit case for quashing the complaint. The High Court ought to have allowed the criminal miscellaneous application of the appellant because of the absence of clear particulars about the role of the appellant at the relevant time in the day-to-day affairs of the Company." 5.6. Learned Senior Counsel with respect to petitioner no. 2 in CRL.M.C. 7912/2023 further submitted that the subject cheques which had been issued were from the joint account of th....
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....aim of petitioner no. 1 of paying Rs. 97,00,000/- (Rupees ninety seven lakhs only) to the respondent is again incorrect as he had failed to place on record a single document substantiating the said claim. It was further argued that the petitioners had deliberately concealed the fact that petitioner nos. 1 and 2 had tendered and executed a personal guarantee dated 27.07.2018 in favour of the respondent for payment of the appreciation amount over and above the principal amount in case the petitioner no. 1 failed to adhere to the terms of the agreement to sell dated 07.11.2016. It was submitted that in addition to the said personal guarantee, petitioner no. 1 had undertaken to attach the personal properties of himself as well as of his wife (petitioner no. 2) with the respondent for the payment of the said amount(s). In furtherance of the same, it is submitted that petitioner no. 1 had issued post-dated cheques from his personal account towards the refund of the principal amount and payment of the appreciation amount. 6.4. Learned counsel for the respondent submitted that with respect to the contention of petitioner no. 1 regarding lack of specific averments made in the Complaint C....
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....Rs. 1,72,21,200/- and another cheque bearing no. 114257 dated 30.09.2018 for Rs. 35,00,000/- (subject-matter of CRL. M.C. 7912/2023) and in case the respondent wished to withdraw his money prior to 15.12.2018, he could use their personal guarantee cheques, else after 15.12.2018, the money could be realised by the respondent from the cheques of the petitioner firm. 9. It is pertinent to note that the respondent chose to deposit for encashment the two cheques which had been issued by petitioner no. 1 from his personal joint bank account with petitioner no. 2 without waiting to deposit for encashment the other two cheques issued by petitioner no. 1 on behalf of the petitioner firm. The cheques issued by petitioner no. 1 from his personal joint account with his wife, i.e., petitioner no. 2 were submitted by the respondent for encashment on 05.12.2018 and on presentation, the same got dishonoured and the cheques alongwith the return memos were thereafter sent to the respondent by the banker of the petitioner nos. 1 and 2 on 06.12.2018. It is stated in the averments as pointed hereinabove that when the petitioners were apprised about bouncing of the said personal guarantee cheques, th....
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....nd returning memos were sent to complainant by the banker of accused on 06-12-2018.The accused was not maintaining sufficient balance in his said account on the date of presentation of the said cheque. On receiving back the said dishonoured cheques, the complainant intimated the fate of the cheques to the accused persons. At this the accused persons felt sorry and advised the complainant to present the cheques of their firm and ensured him for honouring of those cheques." (emphasis supplied) However, in respect to Complaint Case no. 3298/2019, which is the subject-matter of CRL.M.C. 8002/2023, the averments with respect to the subject cheques as pointed hereinabove does not mention anything about the presentation of the cheques issued by petitioner no. 1 in terms of his personal guarantee to the respondent. It is noted that the cheques issued by petitioner no. 1 from his personal bank account were returned to the respondent by the bank of the petitioners on 06.12.2018 and the complaint was filed before the learned Metropolitan Magistrate on 25.01.2019. Further, with respect of cheques issued by petitioner no. 1 on behalf of the petitioner firm, the same were returned alongwit....
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....th respect to the cheques issued by petitioner no. 1 on behalf of the petitioner firm, i.e., in Complaint Case no. 3298/2019 (subject- matter of CRL. M.C. 8002/2023) with regard to the cheques already issued by petitioner no. 1 from his personal bank account. In view of the averments made in the complaints, there cannot be in any manner, doubt left that the respondent exercised his option to present the cheques issued from the personal bank account of the petitioner towards the personal guarantee for discharge of the liability. In these circumstances, the respondent cannot be permitted to present the other set of cheques issued from the bank account of the petitioner firm again for the same transaction. In these circumstances, in the considered opinion of this Court, continuance of proceedings in Criminal Complaint no. 3298/2019 (subject matter of CRL.M.C. 8002/2023) would be an abuse of process of law and therefore, in the interest of justice, exercise of powers under Section 482 of the Cr.P.C. by this Court is warranted in the present case. 11. So far as the liability of petitioner no. 1 with respect to the cheques issued from his personal bank account, i.e., cheque nos. 11425....
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....tion and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant." 12. At any rate, whenever facts are disputed the truth should be allowed to emerge by weighing the evidence. On this aspect, we may benefit by referring to the ratio in Rajeshbhai Muljibhai Patel v. State of Gujarat (2020) 3 SCC 794 where the following pertinent opinion was given by Justice R. Banumathi:- "22. .............. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the NI Act ought not to have been quashed by the High Court by taking recourse to Section 482 CrPC. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the NI Act on the legal issues like limitation, etc. criminal complaint filed under Section 138 of the NI Act against Yogeshbhai ought not to have been quashed merely on the ground that there are inter se disputes between Appellant 3 and Respondent 2. Without keeping in view the st....
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....rnment or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.-For the purposes of this section, - (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm." It is pertinent to note that petitioner no. 2 was neither a part of the proprietorship firm which entered into the agreement to sell nor a party to any of the proceedings; and was also not a signatory on the document of guarantee executed by petitioner no. 1. The said document for sake of completeness is reproduced as under: "P....
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....f the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains the name of the appellant and her husband, the fact remains that her husband alone had put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. 28. We also hold that under Section 138 of the NI Act, in case of issuance of cheque from joint accounts, a joint account-holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account-holder. The said principle is an exception to Section 141 of the NI Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as arm-twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but ce....