Indian Kanoon - Search engine for Indian Law

Delhi District Court

Chetna Jain vs State on 6 November, 2024

CR No. 385-2023                              Chetna Jain Vs State

              IN THE COURT OF MS. SHIVALI SHARMA
               LD. ASJ­03, TIS HAZARI COURT, DELHI

                                      CNR NO. DLWT01­002252­2023
                                                  CR No. 385­2023
                                                U/Sec. 397 Cr.P.C
                                       Chetna Jain Vs State & Ors.
IN THE MATTER OF:

Chetna Jain
W/o Sh. Sunil Jain
R/o GH­5 & 7/246, Paschim Vihar,
New Delhi.
                                                      .............Revisionist

                            VERSUS

1. State NCT of Delhi

2. Kusum Kansal
W/o Late Sh. Subhash Chand Kansal
R/o GH­5 & 7/257, Paschim Vihar,
New Delhi.

3. Priyank Kansal
S/o Late Sh. Subhash Chand Kansal
R/o GH­5 & 7/257, Paschim Vihar,
New Delhi.
                                                     ............Respondents

Other Details :

      Date of Institution                           : 14.07.2023
      Date of Reserving Order                       : 24.10.2024.
      Date of Order                                 : 06.11.2024.

REVISION PETITION U/s. 397 CrPC FOR SETTING ASIDE THE

IMPUGNED ORDER DATED 01.10.2022 of LD. MM (NI Act),


                           Page No. 1 of 8
 CR No. 385-2023                                   Chetna Jain Vs State

Digital Court­01, WEST IN CC No. 1574­2022 WHEREBY THE

REVISIONIST WAS SUMMONED TO BE TRIED AS AN ACCUSED

FOR OFFENCE U/S 138 NI ACT.

ORDERS:

1.    Vide this judgment, I shall dispose off the present revision petition
filed by the Revisionist Chetna Jain who was summoned as an accused by
the Ld. Trial Court for facing trial in C.C No. 1574­2022 titled as Kusum
Kansal & Anr Vs Chetna Jain u/s 138 N.I Act vide impugned order dated
01.10.2022.
2.    State has been impleaded as Respondent no.1 while the
complainants before Ld. Trial Court Smt. Kusum Kansal and Priyank
Kansal are impleaded as Respondent no.2 and 3 in the present revision
petition. For the sake of convenience, parties shall be referred to by their
nomenclature before Ld. Trial Court.
BRIEF FACTS:

3. Brief facts of the case necessary for the disposal of the present revision petition are that the complainants filed a complaint u/s 138 N.I Act before the Ld. Trial Court against the accused Chetna Jain.

4. It is alleged in the complaint that accused is the neighbour of the complainants and had borrowed money from Late Sh. Subhash Chand Kansal I.e the husband of complainant no.1 and father of complainant no.2. Initially, she borrowed Rs. 6 Lacs which were given to her by a cheque. Later on, she borrowed Additional Rs. 4 Lacs which were transferred to her account by Late Sh. Subhash Chand. Accused again approached Late Sh. Subhash Chand and requested more money alleging her financial difficulties. Considering the friendly and family relations Page No. 2 of 8 CR No. 385-2023 Chetna Jain Vs State with the accused for more than 25­30 years, Late Sh. Subhash Chand Jain further advanced a friendly loan of Rs. 10 Lacs on 09.03.2015 and Rs. 5 Lacs around June, 2015. However, accused kept on delaying the return of the loan amount. She finally agreed to repay the pending loan with interest for a total amount of 33 lacs. She issued cheques to the sum of Rs. 10 Lacs in favour of Sh. Subhash Chand Kansal( since deceased), Rs. 10 Lacs in favour of complainant no.1 and Rs. 13 Lacs in favour of complainant no.2. After issuing the cheques, accused also refunded an amount of Rs. 7,50,000/­ to complainant no.2. After demise of Sh. Subhash Chand, complainants were informed by accused that they can present the cheques of Rs. 10 Lacs (2 cheques of Rs. 5 Lacs each) in favour of complainant no.1 and cheque of Rs. 13 Lacs in favour of complainant no.2 and she shall transfer the balance amount of Rs. 2,50,000/­ in a few days. However, when the complainants visited her house, expecting receipt of money, husband of the accused called the police. The complainants presented the cheques in question that are cheque no. 854952 and 854953 in the sum of Rs. 5 Lacs each drawn in favour of complainant no.1 and cheque no. 432876 for sum of Rs. 13 Lacs drawn in favour of complainant no.2. On presentation, all three cheques were dishonored vide returning memos dated 15.02.2022, 17.02.2022 and 15.02.2022 respectively for the reasons "drawers signatures differ", "name mismatched" and "non­CTS cheque" respectively. Legal Demand Notice dated 14.03.2022 was issued to the accused. Despite service of the legal demand notice, accused did not make any payment qua the cheque in question and sent a false and frivolous reply to the notice dated 19.04.2022. Hence, the present complaint case under section 138 NI Act Page No. 3 of 8 CR No. 385-2023 Chetna Jain Vs State was filed by the complainant.

5. After going through the record and hearing the arguments on the point of summoning, accused was summoned vide impugned order dated 01.10.2022.

GROUNDS FOR REVISION/ARGUMENTS ON BEHALF OF THE ACCUSED:

6. In the present revision petition, the impugned order has been challenged on the ground that the same is against the provisions of law as prima facie case is not made out to attract the ingredients of Section 138 NI Act. The complainants have initiated the proceedings u/s 138 NI Act with malafide intentions to harrass the accused. The cheques in question have been dishonoured because they do not represent any enforceable debt. Dishonour of the cheques on the ground, "non­CTS cheque" and "name mismatched" does not attract liability u/s 138 NI Act. In addition to this, Ld. Trial Court has ignored the admission of the complainants that they have already received part payment of Rs. 7,50,000/­ from the accused. Thus, even if the cheques in question were issued for a legally enforceable debt, the said debt was not due on the date of presentation of the cheques as the loan has been admittedly paid in part. Accordingly, the impugned order is bad in law. Hence, setting aside of the impugned order is prayed.

7. Ld. Counsel for the revisionist has argued in lines with the grounds of appeal. The arguments have been addresses on two basic issues, firstly, that the reasons for return of two of the cheques in question that are "name mismatched" and "non CTS cheque" does not attract the liability u/s 138 NI Act. However, no citations in support of Page No. 4 of 8 CR No. 385-2023 Chetna Jain Vs State the said arguments have been placed on record. The second limb of argument of Ld. Counsel for the revisionist is that since admittedly, part cheque amount of Rs. 7,50,000/­ was returned to complainant no.1, there was no legally enforceable debt to the tune of the amount of the cheques in question due on the date of presentation of the cheques. Reliance in this regard has been placed on the decision of the Apex Court in Dashrathbhai Trikambhai Patel Vs Hitesh Mahendrabhai Patel & Ors. AIR 2022 SC 4961. Accordingly, it is submitted that the impugned order being bad in law is liable to be set aside.

ARGUMENTS             ON       BEHALF              OF        COMPLAINANTS/

RESPONDENTS NO.2 AND 3:

8. Per contra, a detailed reply has been filed on behalf of Respondents no.2 and 3 alleging that the impugned order is a perfectly legal and proper order and does not deserve any interference by this Court. There is no infirmity or illegality in the impugned order dated 01.10.2022 and it is a well reasoned order. It is submitted that the grounds of revision are false and fabricated and there is no error in the impugned order and thus, present revision petition is liable to be dismissed.

9. It is submitted that the reasons "name mismatched" and "non­CTS cheque" clearly attract the liability u/s 138 NI Act. Reliance in this regard has been placed on the decision of Hon'ble High Court of Himachal Pradesh at Shimla in Premlal Vs State of HP & Ors. 2024:

HHC: 588 wherein considering the circulars of RBI to the effect that non CTS cheques are still valid as a negotiable instrument, Hon'ble High Page No. 5 of 8 CR No. 385-2023 Chetna Jain Vs State Court had refused to interfere with the summoning order in respect of dishonour of a cheque on the ground "non­CTS cheque". It is also submitted that the similar question is still pending before our own Hon'ble High Court of Delhi in Sanjeev Kocher Vs State & Anr Crl LP 225/2019 and there is no other decision of any superior courts specifically holding that non­CTS cheques do not attract liability u/s 138 NI Act. Accordingly, this is an issue which has to be decided after trial and does not provide a ground for setting aside the summoning order impugned in the present petition.

10. As regards the second limb of argument, it is submitted that a close perusal of the entire complaint filed u/s 138 NI Act especially Paragarph no. 5 and 6 clearly show that total amount of Rs. 33 Lacs was due towards the complainants from the accused for which she had issued different cheques amounting to Rs. 10 Lacs in favour of Sh. Subhash Chand (since deceased), Rs. 10 Lacs in favour of complainant no.1 and Rs. 13 Lacs in favour of complainant no.2. Although, complainants have admitted receiving Rs. 7.5 Lacs from the accused but as per Para 6 of the complaint, the said payment has been received against the cheques of Rs. 10 Lacs drawn in favour of Late Sh. Subhash Chand. Para 6 also mentions that balance amount of Rs. 2.5 lacs against the cheques of Rs. 10 Lacs drawn in favour of Late Sh. Subhash Chand was agreed to be paid by the accused separately and in addition to the cheques in question. Accordingly, this is not the case where part payment out of the cheque amounts has been made after issuance of the cheques in question. Accordingly, decision of the Apex Court in Dashrathbhai's case supra is not attracted in the present matter. The contention of the accused that Page No. 6 of 8 CR No. 385-2023 Chetna Jain Vs State the admitted payment of Rs. 7.5 Lacs was against the cheques in question and not qua the cheques of Rs. 10 Lacs issued in favour of Late Sh. Subhash Chand is a matter of trial and cannot be a ground for setting aside the impugned order. In these circumstances, it is submitted that there is no merit in the present revision petition and accordingly, its dismissal is prayed.

FINDINGS:

11. I have heard the submissions made and carefully perused the record. I have also gone through the impugned order which is a well reasoned order passed on the basis of documents and material placed on record. It is an admitted case of the complainant that one of the cheques in question was dishonoured for the reason, "non­CTS cheque". Non­CTS cheques are basically old cheques which were earlier issued by the bank and have now been discontinued. The fact that a non­CTS cheque has not been returned by the Accused to the concerned bank and rather signed and handed over to the complainant in itself points towards the mala fide intentions of the accused. As per the reply to the legal notice sent by the accused, the cheque in question was issued to the complainants as a security cheque much prior to the date mentioned on the cheque and that is the reason why it has been returned for the reason, "non­CTS cheque". However, this defence is a mixed question of facts and cannot be considered at this stage for setting aside the summoning order in the present revision petition. There is no set law that any cheque dishonoured for the reason, "non­CTS cheque" or "name mismatched"

does not attract liability u/s 138 NI Act. Accordingly, merely this ground is not sufficient for interfering with the impugned order on summoning at Page No. 7 of 8 CR No. 385-2023 Chetna Jain Vs State this stage.

12. As regards the part payment of Rs. 7.5 lacs, the parties are again at loggerheads as regards the cheque against which the said payment was made. While the complainants are alleging that the said payment was made in lieu of the cheque of Rs. 10 Lacs which could not be presented during lifetime of Late Sh. Subhash Chand, the accused is claiming that the said payment has been made against the cheque issued in favour of the complainant no.1. Again, this is a disputed question of fact which requires adjudication after appreciation of evidence led by both the parties and cannot be made a ground for setting aside the impugned order summoning the accused.

13. In view of the reasons given above, I am of the opinion that the grounds raised by the accused in the present revision petition are mixed questions of facts and law and can be considered during trial by Ld. Trial Court after appreciating the evidence led by both the parties. As regards the impugned order on summoning, no infirmity or illegality is observed therein. Accordingly, present revision petition is dismissed and impugned order dated 01.10.2022 is upheld.

14. TCR be sent back along with copy of this order.

15. No orders as to cost.

16. Revision file be consigned to Record Room after due compliance.

SHIVALI SHARMA SHARMA Date:

2024.11.06 16:19:02 +0530 (SHIVALI SHARMA) ASJ­03, WEST/DELHI 06.11.2024 Page No. 8 of 8