Delhi District Court
Chander Mahajan vs . M/S Silva Mirros (India) Pvt. Ltd. & ... on 28 April, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE (NI ACT)-01,
CENTRAL: ROOM NO.-275, TIS HAZARI COURT COMPLEX, DELHI
Chander Mahajan Vs. M/s Silva Mirros (India) Pvt. Ltd. & Anr. CC No.-3540/2010
28.04.2014
JUDGMENT
(Brief reasons for decision as required under section-264 Cr.PC.) The crucial question, which in a trial of cheque bounce cases is a regular phenomenon is the question of issuance of more cheques of same date to same person for discharge of a single transaction. Generally no explanations are provided by any complainant. I have not been able to find any ground on which this can be justified. If any person- "A" wants to re-pay some amount to another person- "B" through cheque on a single date, he will naturally issue one single cheque of the total amount and even the receiver will prefer one single cheque instead of two or more cheques. Of course, this may be subject to a condition that if such person does not have the entire amount in his one bank account to complete the total amount to be given, he may issue one cheque of one bank account for some amount and second/other cheque from his other bank account for remaining amount. Otherwise, no one will issue more cheques of same date to same person to pay a single loan amount and no one will receive more cheques of same date for the same. Though the human behaviour differs, however, as a standard of reasonable prudent person, the above inference may be accepted. Situation is highly unbelievable and therefore I hold that the present complaint filed by the person- "A" against the Person- "B" can not be sustained.
2. In the present cases, the person- "A" is Chander Mahajan i.e. the complainant, Person-
"B" is Pawan Kumar i.e. the accused.
Chander Mahajan Vs. M/s Silva Mirros (India) Pvt. Ltd. & Anr. CC No.-3540/2010 1
3. Claim made by Chander Mahajan is that he had given a loan of Rs.6 lacs to the accused Pawan Kumar and in consideration thereof the accused had given him two post dated cheques.
4. Complaint does not show the date of advancement of loan. Cross-examination of Chander Mahajan however shows that the loan was advanced somewhere in October, November, December 2006. This is clearly a vague reply made by the complainant.
4.1. The legal notice shows that accused had issued the cheques when the accused failed to refund the loan amount. Whereas the complaint shows that accused had issued the cheques in consideration of the receipt of the said loan. This is clearly contradictory.
4.2. Even further the legal notice shows that the cheques were without date. Whereas the complaint shows that cheques were post dated. There is a clear difference between a post dated cheque on the one hand and a cheque without date on the other. Be that as it may. The claim made on this score in the legal notice and complaint are clearly contradictory.
5. However, the present case can be decided from a pure legal angle. If we go by the affidavit of Chander Mahajan which is evidence, we will find that when the cheques were issued, there was no liability to be discharged.
5.1. The affidavit shows that the accused had issued the cheques in consideration of receipt of the loan. Date of issuance of cheques being not disclosed by the complainant, we have to impliedly infer the timings from the affidavit of the complainant. The sentence relevant from paragraph-2 of affidavit of complainant is being quoted as under:
"....the deponent keeping in view the past relations had given a loan of Rs.6 lacs to the Accused No.2 and in consideration of the receipt of the said loan amount of Rs.6,00,000/-, the Accused had given the two post dated cheques...."
Chander Mahajan Vs. M/s Silva Mirros (India) Pvt. Ltd. & Anr. CC No.-3540/2010 2 5.2. The above clearly shows that the cheques were issued on the same date on which the loan was allegedly advanced. It can not be believed that a loan is required to be discharged on the same day on which the loan was given. Any loan can become repayable at least after some day(s) and therefore on the date of advancement of loan, there can not be any question of discharging the liability of the loan amount.
5.3. If there is no question of discharging the loan amount at the time when the cheques were issued, the said cheques can not be treated to have been issued in discharge of any liability.
6. Hon'ble Supreme Court very recently in Indus Airways P. Ltd. v. Magnum Aviation P. Ltd. 2014 (4) SCALE 645, has held as under:
"The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 138."
"The Gujarat High Court in Shanku Concretes dealing with Section 138 of the N.I. Act held that to attract Section 138 of the N.I. Act, there must be subsisting liability or debt on the date when the cheque was delivered. The very fact that the payment was agreed to some future date and there was no debt or liability on the date of delivery of the cheques would take the case out of the purview of Section 138 of the N.I. Act. While holding so, Gujarat High Court followed a decision of the Madras High Court in Balaji Seafoods."
Chander Mahajan Vs. M/s Silva Mirros (India) Pvt. Ltd. & Anr. CC No.-3540/2010 3 "For a criminal liability to be made out under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque."
"In our opinion, the view taken by Andhra Pradesh High Court in Swastik Coaters, Madras High Court in Balaji Seafoods, Gujarat High Court in Shanku Concretes and Kerala High Court in Ullas is the correct view and accords with the scheme of Section 138 of the N.I. Act."
6.1. Clearly, existence of liability to be discharged at the time of delivery of the cheque is a sine qua non for any prosecution under Section-138 NI Act. In the present case, as discussed earlier, when the cheques were purportedly issued, there could not have been any liability to be discharged as at that time the loan itself was allegedly advanced which could not have matured for repayment at the same moment.
7. As such, I find that the complainant has failed to establish that the accused had issued the cheques in discharge of any legally enforceable liability.
8. As such accused company i.e. M/s Silva Mirrors (India) Pvt. Ltd is acquitted from Section-138 NI Act. Consequently, accused Pawan Kumar is also acquitted from Section-138 r/w 141 NI Act.
9. A copy of this order be placed on the web site of the district courts.
(RAKESH KUMAR SINGH) MM-(NI Act)-Central-01/THC/Delhi 28.04.2014 Chander Mahajan Vs. M/s Silva Mirros (India) Pvt. Ltd. & Anr. CC No.-3540/2010 4