TaxTMI 
TaxTMI 
2025 (12) TMI 1066
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....itioner/Dhiren Navlakha and Farhad Suri for offence under Section 138 NI Act. 3. CRL MC 1624/2021 has been filed under Section 482 Cr.P.C. against the Order dated 22.01.2021 whereby the Ld. M.M. in CC N.I. Act No. No. 117/2021 summoned the Petitioner/Dhiren Navlakha for offence under Section 138 NI Act. 4. The aforesaid three Petitions are being decided together as they arise out of similar facts and involve the same question of law. Facts as per CC No. 113/2021 under Section 138 NI Act: 5. The Complaint has been filed by Respondent No.1/Praveen Choudhary (Complainant) against Respondent/M/s Sumeru Processors Pvt. Ltd. (Accused No.1 Company); Petitioner No.2/Dhiren Navlakha (Accused No.2); Petitioner No.1/Farhad Suri (Accused No.3) and Niraj Jha (Accused No.4). 6. It is stated that Accused No.1 Company is Pvt. Ltd. Company incorporated under the Companies Act, 1956 and Accused Nos. 2-4 are its Directors and involved in day-to-day functioning and decisions of the Company. 7. The Complainant and Accused No.3/Farhad Suri have known each since a long time through the father of the Complainant. The Complainant got acquainted with the other accused persons through Accus....
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....he Complainant's brother, Ravi Choudhary, his wife Babita Choudhary and the Complainant's wife, Jyoti Choudhary. It was agreed that rent would increase every three years. 13. After the initial Agreement expired, the tenancy was orally extended from April 2014. However, all Accused intentionally stopped paying rent from April 2014 onwards. 14. The Accused also failed to pay electricity and water charges for the past six years, citing business losses. In August 2020, the parties settled and borrowed a lump sum amount of Rs. 24,00,000/- and the accused issued a cheque accordingly. 15. Accused Nos. 1, 2, 3 issued Cheque No. 5668870 dated 07.09.2020 for Rs.24,00,000/- during the process of storage of goods. However, the said cheque returned unpaid on 05.11.2020 with the remark "ACCOUNT BLOCKED". 16. The Complainant subsequently, sent a Legal Notice dated 03.11.2020. However, the Accused had no intention to return the money, due to which the Respondents herein filed a Complaint under Section 138 NI Act. Facts as per CC No. 117/2021 under Section 138 NI Act: 17. The Complaint has been filed by Respondent/Jitender Choudhary (Complainant) against Proforma Respondent/M/s Su....
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....lleged tenancy has been mentioned. 24. The Complainant alleges receipt of Cheque No. 574506 for Rs. 75,00,000/- ; Cheque No. 566870 for Rs. 24,00,000/- ; Cheque No. 000094 for Rs. 1,10,00,000/- all dated 07.09.2020. 25. However, it is an admitted fact that, by virtue of the NCLT Order (Principal Bench), New Delhi dated 15.04.2019, all securities, cheque books, and the operation of the Bank Account of the Proforma Respondent had already been handed over to the Interim Resolution Professional ("IRP"). 26. Subsequently, on 03.12.2019, a Liquidator was appointed who took complete charge of the Proforma Respondent. Therefore, as of September 2020, the Petitioners had no control over the account and could not have issued the cheque in question. 27. The Cheques were returned unpaid on 05.10.2020 with the remark "ACCOUNT BLOCKED". In Reply to the Demand notice, the Petitioners clarified that due to pending insolvency proceedings and the takeover by the Resolution Professional and later the Liquidator, issuance of the Cheque after 2019, was impossible. 28. Furthermore, under Section 138 NI Act, the essential requirement is that the cheque must be drawn on an account maintaine....
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..... Jeevan Divakar Lolienkar. 2000 (5) Bom CR 9 (Bombay High Court); Narendra vs. Kanekar. 2006 Cri.L.J. 3111 (Bombay High Court). 35. It is submitted that in absence of a legally payable debt, Cheque No. 574506 dated 07.09.2020 could not have been issued towards discharge of any liability. 36. The Return Memo reflects the remark "ACCOUNT BLOCKED," which does not fall within the scope of Section 138 NI Act, as held in the case of Rajesh Meena vs. State of Haryana, Punjab and Haryana High Court. 37. Furthermore, it is submitted that the Ld. MM failed to examine the record, ignored the "ACCOUNT BLOCKED" return memo, and overlooked the Reply dated 11.12.2020 explaining that the Petitioners had no control over the account due to NCLT proceedings; hence, Prosecution is not maintainable. 38. Hence, a prayer is made to set aside the summoning Order dated 21.01.2021. Contentions of the Respondent No.1/Praveen Choudhary: 39. The Reply has been filed by the Respondent No.1/Praveen Choudhary whereby all the averments made in the Petition, are opposed. 40. It is submitted that the cheque in question were duly signed, filled and delivered by the Petitioners to the Respondent ....
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....een served on the Respondent. 48. It is submitted that the Respondent is not the signatory of the impugned cheque nor any particular role was assigned to him in the Complaint. In fact, he was a dummy Director of the Respondent No.3 Company. The summoning Order thus, seems to be passed in a mechanical manner without appreciating the true facts of the case. 49. It is submitted that there were three other Directors of the Company, namely, Amita Navlakha (wife of Dhiren Navlakha), Shantanu Navlakha (son of Dhiren Navlakha) and Mahinder Kumar Verma, who were made Director because the Petitioners wanted to raise loan against the immovable property owned by him. In the same manner, Respondent was also made a Director only on 14.10.2014, solely to facilitate the petitioners in raising a loan from an NBFC, using the respondent's self-owned properties. 50. Loans exceeding Rs. 500 lakhs were raised by mortgaging the respondent's properties. To secure the loan, the Petitioners issued cheques on behalf of the Respondent and Sh. Mahender Kumar. Although the Petitioners promised to pay regular instalments, they deliberately defaulted, resulting in the auction of the mortgaged properties ....
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....have also filed the case seeking recovery of money, but the Petitioner did not pay the money. It is the modus operendi of the Petitioners that they raised loans from different individuals and appropriated the same for their own use and benefit and thereafter, issues the cheques from the account of the Respondent No.3 Company and with the deliberate intention, they put the Company to liquidation so that no recovery can be made effective against them. 58. The Petitioners had taken the friendly loan on their own account and the Respondent is not involved in the same. 59. It is submitted that the Petitioners misused their possession over the assets and documents of the Respondent No.3 and in an illegal manner, had issued the cheques in question, without the consent, knowledge, permission of the Respondent No.2/Niraj Jha. The Petitioners fraudulently issued the cheques to avoid their personal liability. 60. Written Submissions have been filed on behalf of Respondent No.2/Niraj Jha and a Compilation of judgments have been submitted by the Petitioners. Submissions heard and record perused. 61. The present Petitions arise from three criminal Complaints filed under Section 13....
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....on 138 NI Act. 67. In the present case, the impugned cheques relied are all dated 07.09.2020, whereas the NCLT had vide Order dated 15.04.2019, admitted the Corporate Debtor into CIRP and directed that all securities, cheque books and bank operations be handed over to the Interim Resolution Professional (IRP). Furthermore, Moratorium was declared in terms of Section 14 IBC. Subsequently, vide Order of NCLT dated 03.12.2019, M/s Sumeru Processors Pvt. Ltd. went into liquidation, a Liquidator was appointed and a fresh moratorium was declared to be commenced. Thus, from April 2019 onwards, the Petitioners ceased to have any authority, control or right to operate the said Account. Any cheque purportedly issued in September 2020, after divesting of powers, could not have been validly issued by the Petitioners. 68. The facts under consideration, are para materia with the facts in Ganesh Chandra Bamrana & Ors. vs. Rukmani Gupta, CRL.M.C. 6170/2022, decided on 17.12.2024 (2024:DHC:9923), wherein the cheques in question were dated 15.01.2020 and 15.03.2020. However, the IRP was appointed in 2019 i.e. prior to the dates of cheques. Consequently, the account was blocked due to the order....
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....fficient; it becomes punishable only when the cheque is dishonoured for the reason insufficiency of funds. Likewise, merely showing that the holder of an account with the particular bank would also not sufficient to show that it is being maintained by the account holder, unless he has the authority and control over the said account. If the holder is deprived of his authority and control over the bank account, it cannot be said that the account was being maintained by him. 76. In the case of Ceasefire Industries Ltd. vs. State, 2017 SCC OnLine Del 8280, Co-ordinate Bench of this Court observed that it is not every return of a cheque unpaid which leads to prosecution of an offence under Section 138 NI Act. It has to be taken into account that even if the reason given for dishonour of the cheque is "Account Closed" or "Payment Stopped" it can fall under Section 138 NI Act, if it is shown that there was insufficiency of funds in the account of the holder at the time of presentation of the cheque. The reason for dishonour of the cheque in the present case is "Account blocked". Where the dishonour of cheque was for the reason that the account had been frozen in terms of some statutory....