Madras High Court
M/S Challani Rank Jewellery vs / on 17 October, 2024
Author: G.Jayachandran
Bench: G. Jayachandran
Crl.O.P.No.21268 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :01.10.2024
Pronounced on :17.10.2024
Coram:
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
Crl.O.P.No.21268 of 2024
and
Crl.M.P.Nos.12190 & 12191 of 2024
1.M/s Challani Rank Jewellery
A Partnership Firm
Represented by its Partnership
Mr.Sumti Challani
2.Mr.Sumti Challani, Age 42,
Partner M/s Challani Ranka Jewellery
3.Mr.Maya Challani, Age 40,
Partner M/s Challani Ranka Jewellery
All at
Challani Plaza, No.36,
Veerappan Street, Sowcarpet, Chennai 600 079
and also at No.2, Ritherdon Avenue,
Vepery, Chennai 600 007. .. Petitioners
/versus/
1/31
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.21268 of 2024
Ashok Kumar Jain
Proprietor of M/s Mangalkalash Jewellers
No.152, Mint Street, 1st Floor,
Sowcarpet, Chennai 600 079. .. Respondent
Criminal Original Petition has been filed under Section 528 of
Bharatiya Nagarik Suraksha Sanhita, 2023, to call for the records in
S.T.C.No.3866 of 2022 on the file of IV FTC George Town, Chennai and
quash the same.
For Petitioners :Mr.S.Ramesh Kumar
For Respondent :Mr.J.Ranjith Kumar for
M/s Surana @ Surana
-----
ORDER
The Criminal Original Petition to quash the criminal complaint filed
for offence under Section 138 of the Negotiable Instruments Act, 1881(in
short “NI Act”) is on the following two specific grounds.
(1) Single complaint in respect of dishonour of 36 cheques bearing
different dates is not maintainable in view of Section 219 of Cr.P.C.
(2) The account from which the cheques drawn had sufficient fund to
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honour the cheque but not honoured in view of the account blocked as per
order of the Income Tax Department and the Enforcement Directorate.
Hence, the facts of the case does not fall under any of two contingencies
contemplated under Section 138 of NI Act.
2. The crux of the complaint against the petitioners:
Complainant Mr.Ashok Kumar Jain, Proprietor of M/s Mangalkalsh
Jewellers carrying on business at 152, Mint Street, First Floor, Sowcarpet,
Chennai, is a dealer in silver articles and silver bullions. The first accused
M/s Challani Ranka Jewellery, a partnership Firm, dealing with silver
articles and silver bullions. The second and third accused are its partners.
On 14/08/2020 M/s Chellani Ranka Jewellery purchased silver articles and
silver bullions worth Rs.1,10,35,566/- from the complainant under invoice
even dated with promise to pay the price within 7 days, failing which will
pay 24% interest p.a. till the date of payment.
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3. Towards part discharge of the legally enforceable debt/liability, on
behalf of the first accused, the second accused with the knowledge of the
third accused issued 36 cheques drawn on Indian Overseas Bank, Sowcarpet
Branch, Chennai. The cheques are for different amount drawn on various
dates between 14/08/2020 and 30/09/2020, totally for Rs.1,05,35,566/-.
4. The complainant initially presented 10 cheques for collection
through State Bank of India, Elephant Gate Branch. All 10 cheques were
dishonoured. Subsequently, the complainant met the 2nd and 3rd accused,
informed them about the dishonour of the cheques and sought for payment.
The 2nd and 3rd accused assured honouring the cheques and requested to
represent them. However, on representation all the 36 cheques were returned
with endorsement “Account blocked situation covered in 2125”. Intimating
the dishonour of the 36 cheques, the complainant issued statutory notice
dated 29/10/2020 to the accused, demanding payment of Rs.1,05,35,566/-
being the cheques amount. The notice was received by the accused on
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31/10/2020 and they replied through their counsel vide, reply notice dated
07/11/2020 containing false and frivolous statements and allegations. The
accused never took any steps to clear the legally enforceable debt.
5. Having issued cheques with fraudulent intention to cheat, the
accused 1 to 3 have jointly and severally committed offence punishable
under Section 138 of NI Act.
6. At paragraph 11 of the complaint, the cause of action for the
complaint is narrated as below:-
The cause of action for the above Complaint arose at Chennai when 1 st
Accused had purchased silver articles and silver bullions from the
Complainant with prior approval and consent of the 2nd and 3rd Accused,
when an Invoice dated 14.08.2020 was raised for a total value of
Rs.1,10,35,566/- against such purchases, when the 2nd Accused as an
Authorized signatory of the 1st Accused with full knowledge, concurrence
and approval of the 3rd Accused had issued the above said Cheques towards
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discharge of their liability and subsequently, when the Complainant
presented the said Cheques for encashment to their Bankers, State Bank of
India, Elephant Gate Branch, Wall Tax Road, Chennai 600 003, and when
the said Cheques were returned dishonoured by the Bankers of the Accused,
Indian Overseas Bank, Sowcarpet, Chennai - 600 079 vide Return Memo
dated 19.10.2020 for the reason ‘Account Blocked Situation Covered in
2125’ and when the Legal Notice dated 29.10.2020 was issued to all the
Accused by the Counsel of the Complainant, when the legal notice was
received by all the Accused on 31.10.2020 and the Accused issued reply
notice dated 07.11.2020 through their Counsel containing false and frivolous
statements and allegations, however the Accused failed to repay till date.
This Complaint is filed within time. The State Bank of India, Elephant Gate
Branch is within the jurisdiction of the C2, Elephant Gate Police Station,
Chennai. The above said police station is within the jurisdiction of this
Hon’ble Court.
7. Crux of the quash petition:-
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The second petitioner/second accused Mr. Sumti Challani in his
affidavit filed in support of the quash petition contends that, he is the partner
of the first accused firm M/s Challani Ranka Jewellers. The third accused
Maya Challani is his wife, but she is not a partner of the first accused firm
as alleged in the complaint. Mr.R.J. Anandmul and Mahender Chalani are
the other partners of the First accused Firm.
8. The 36 cheques which are subject matter of the complaint were not
given in respect of the alleged supply of silver articles and silver bullions by
the complainant on 14/08/2020. They were cheques given to the
complainant for the previous transactions for the period 2019 and same been
misused to initiate complaint under Section 138 of NI Act against him and
his wife.
9. In fact, on 14/08/2020 the date on which the complainant alleged to
have supplied silver articles, he was not running any business in the address
given by him. The police who enquired his complaint for cheating, found in
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the course of the investigation that the running numbers of the subject
cheques (901318 to 901352 and 901286) were of the year 2019 and other
cheques (prior and later numbers) were passed between May 2019 and June
2019. Thus, the allegation of the complainant that these 36 cheques were
given on 14/08/2020 is a patent lie. Hence, the complaint given to the police
for cheating was closed as mistake of fact. The complainant for the very
same transaction had filed money suit before the High Court and same is
pending in C.S.(Commercial)No:361/2020 on the file of High Court,
Madras.
10. During the police enquiry, the complainant failed to produce the
invoice book to prove the sales on 14/08/2020. The alleged sale is denied
and invoice is a fake one as if the complainant was carrying on business in
the address mentioned in the invoice. One complaint for 36 cheques bearing
different dates and amount will not constitute same transaction and
prejudicial to the accused interest besides violation of Section 219 of the
Cr.P.C. The cheques were returned with endorsement “ACCOUNT
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BLOCKED SITUTATION COVERED IN 2125”. This reason will not cover
Section 138 of Negotiable Instruments Act, 1881. The account was blocked
by Enforcement Directorate on 28/01/2020. On the day of blocking the
petitioner's account, a balance of Rs.10crores lying in the Account and the
Bank has clearly explained to the Police that the cheques were issued to the
account holder in the year 2019.
11. To buttress the above submission, the petitioners have enclosed
the statements of witnesses recorded by the police during the investigation of
the complaint given by the respondent in Crime No: 216/2021 ( on the file of
CCB/Team IV, Chennai) and the letter of the Indian Overseas Bank,
Sowcarpet Branch to the Sub Inspector of Police, CCB- Team IV furnishing
KYC details and about the lien created in the petitioner’s bank account.
12. The Learned Counsel for the petitioners rely upon the following
judgement in support of his argument that single complaint for 36 cheques
not maintainable unless suitable amendment is made to section 219 of
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Cr.P.C.
13. Suo Motu Writ Petition No:02/2020 ( Expeditious Trial of Cases
under Section 138 of NI Act, 1881): Reported in CDJ 2021 SC 289.
14. Per contra, the learned counsel for the respondent/complainant
rely upon the following judgments to sustain the single complaint for 36
cheques.
(i)Manjula –vs- Colgate Palmolive ( India ) Ltd:
[2006 (5) STC 303].
(ii)M/s Kaizer Trade Ventures –vs- M/s Sutha
Enterprises: [20217 SCC OnLine Mad 15608].
(iii)Suryakant V. Kankia –vs- Muthukumaran:
[MANU /TN/0072/2004].
(iv)G.Thenmozhi –vs- N.Subramaniam:
[MANU/TN/2026/2022].
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15. To consider the merits of the argument put forth by the respective
counsels, it is appropriate to place on record the sequence of dates and
events relevant for consideration.
16. As per the complaint, on 14/08/2020, the complainant supplied
silver articles and bullions worth Rs.1,10,35,566/-.
17. The following 36 cheques were given for discharge of the debt:
S.No. Cheque No. Date Amount
(Rs.)
1. 901318 30.09.2020 1,00,000/-
2. 901319 30.09.2020 1,00,000/-
3. 901320 30.09.2020 1,00,000/-
4. 901321 30.09.2020 1,00,000/-
5. 901322 30.09.2020 1,00,000/-
6. 901323 26.09.2020 1,00,000/-
7. 901324 26.09.2020 1,00,000/-
8. 901325 26.09.2020 1,00,000/-
9. 901326 26.09.2020 1,00,000/-
10. 901327 26.09.2020 1,00,000/-
11. 901328 19.09.2020 1,00,000/-
12. 901329 19.09.2020 1,00,000/-
13. 901330 19.09.2020 1,00,000/-
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S.No. Cheque No. Date Amount
(Rs.)
14. 901331 19.09.2020 1,00,000/-
15. 901332 19.09.2020 1,00,000/-
16. 901333 12.09.2020 1,00,000/-
17. 901334 12.09.2020 1,00,000/-
18. 901335 12.09.2020 1,00,000/-
19. 901336 12.09.2020 1,00,000/-
20. 901337 12.09.2020 1,00,000/-
21. 901338 05.09.2020 1,00,000/-
22. 901339 05.09.2020 1,00,000/-
23. 901340 05.09.2020 1,00,000/-
24. 901341 05.09.2020 1,00,000/-
25. 901342 05.09.2020 1,00,000/-
26. 901343 28.08.2020 1,00,000/-
27. 901344 28.08.2020 1,00,000/-
28. 901345 28.08.2020 1,00,000/-
29. 901346 28.08.2020 1,00,000/-
30. 901347 28.08.2020 1,00,000/-
31. 901348 14.08.2020 1,00,000/-
32. 901349 14.08.2020 1,00,000/-
33. 901350 14.08.2020 1,00,000/-
34. 901351 14.08.2020 1,00,000/-
35. 901352 01.10.2020 50,000/-
36. 901286 21.08.2020 70,85,566/-
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18. Out of the above 36 cheques, the complainant claims that initially
he presented the following 10 cheques and same was dishonoured.
S.No. Cheque Date Amount Return
No. (Rs.) Memo
1. 901343 28.08.2020 1,00,000/- 29.08.2020
2. 901344 28.08.2020 1,00,000/- 29.08.2020
3. 901345 28.08.2020 1,00,000/- 29.08.2020
4. 901346 28.08.2020 1,00,000/- 29.08.2020
5. 901347 28.08.2020 1,00,000/- 29.08.2020
6. 901348 14.08.2020 1,00,000/- 27.08.2020
7. 901349 14.08.2020 1,00,000/- 27.08.2020
8. 901350 14.08.2020 1,00,000/- 27.08.2020
9. 901351 14.08.2020 1,00,000/- 27.08.2020
10. 901286 21.08.2020 70,85,566/- 24.08.2020
19. Subsequently, he presented all the 36 cheques for collection and
same were returned with 36 individual memos dated 19/10/2020 stating “
Account blocked situation covered in 2125”.
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20. Thus, from the complaint it is found that for discharge of debt
arose on the supply of goods on 14/08/2020, 36 cheques for different
amount on different dates between 14/08/2020 and 30/09/2020 issued. Out
of 36 cheques the complainant had initially presented 4 cheques dated
14/08/2020 each for Rs.1,00,000/- and got it returned with memo dated
27/08/2020. One cheque dated 21/08/2020 for Rs.70,85,566/- and got
returned on 24/08/2020, five cheques dated 28/08/2020 each for
Rs.1,00,000/- and got it returned on 29/08/2020. Subsequently he had
presented all the 36 cheques and got it returned on 19/10/2020.
21. The date of presentation of the cheques not found in the statutory
notice or in the complaint. The convergence of the events after issuance of
cheques on three different dates and presentation on different dates, had
happened only when the statutory notice dated 29/10/2020 issued by the
complainant through his counsel. The statutory notice discloses transactions
on different dates.
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22. Section 219 of Cr.P.C., deals with offence of same kind
committed within the space of 12 months and Section 220 of Cr.P.C., deals
with more offences than one, committed by same person, in one series of act
so connected together as to form same transaction. These two provisions
enable the court to frame charge together and conduct one trial, respectively.
23. The field of operation of these two sections though at times co-
exist and overlap, but their operation can never be inter-changeable. While
Section 219 of Cr.P.C enables one trial up to 3 cases for offences of same
kind committed by same person within the space of 12 months, Section 220
Cr.P.C enables one trial for several offences forming part of same
transaction. The offences need not be of same kind. It may be of different
kind but form part of same transaction.
24. In Suryakant V Kankia –vs- Muthukumaran cited supra, Learned
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Single Judge of this Court held that Section 219 of Cr.P.C incorporates a
general rule and not mandatory in proceedings under Section 138 of NI Act.
While Section 219 Cr.P.C contemplates joinder of charges to avoid
multiplicity of proceedings in criminal matters. Though it is desirable to file
separate complaints , there is nothing illegal in filing a single complaint for
dishonour of 9 cheques drawn on various dates within span of two months
but presented together on the same day and returned on the same day. The
issuance of single notice for the 9 cheques result in forming part of same
transaction.
25. In Manjula –vs- Colgate Palmolive (India) Limited cited supra,
the Division Bench of this Court considering the facts of the case wherein 16
cheques of different dates and different amount given for discharge of
liability presented on same day and got return on same day. One common
notice was issued and reply was also one and common for all the 16
cheques. One complaint for 16 cheques when challenged before the Court as
violation of the general rule, the division bench of this Court observed as
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below:-
“12.The above said 16 cheques were drawn on different
dates and they were for different amounts, but, they were
presented together for payment and were dishonoured and a
single notice was sent by the complainant to the drawer. The
general rule is that every distinct offence of which a person is
accused, there shall be separate charge and every such charge
shall be tried separately. As observed by the Division Bench of
the Kerala High Court in Swarnalatha v. Chandramohan, 1996
(3) Crimes 283, Section 219, Cr.P.C. is an exception to the
general rule. As stated earlier, even though different cheques
were given on different dates, the presentation of all those
cheques formed the same transaction. Further, the demand was
also made by the complainant on the dishonouring of the
cheques by giving one lawyer's notice and not several demands
for the payment of the dishonoured cheques. In those
circumstances, we are of the view that the petitioner/accused
herein may be charged and tried at one trial for several such
offences, because, the series of acts are so inter-linked or inter-
connected.
13. The very object of Section 219, is to prevent
miscarriage of justice by clubbing together a number of offences
and making it impossible for the accused to defend them.
Sections 219 and 220, Cr.P.C. lay down different and distinct
exception to the general rule contemplated under Section 218
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Cr.P.C. in framing charges. We are of the view that the number
of three offences underlined in Section 219 of the Code cannot
control Section 220(1) of the Code.
14.In the instant case, the offences committed by the
same person in respect of 16 cheques must certainly be held to
be part of the same transaction considering the purpose, the
sequence, events, nature of the allegation, proximity of
commission, unity of action etc. In such circumstances, it is easy
to conclude that the offences under Section 138 of the Act in
respect of those cheques can be held to be offences committed in
the course of same transaction. Section 219(1), Cr.P.C. refers to
identical offences committed on different dates during a span of
12 months. It permits joinder of those charges provided they are
offences of the same kind.
15.In these circumstances, we hold that Section 219(1),
Cr.P.C. permits joinder of all charges provided they are offences
of the same kind. We are also of the view that the number of
transactions and the cheques issued prior to the issuance of the
statutory notice under Section 138(b) of the Act could at best be
considered as bundle of facts giving rise to a cause of action and
that it is not a ground to quash the criminal proceedings against
the drawer of the cheques. We further hold that if the offences
are of the same kind, the number of transactions between the
parties which culminated into issuance of the statutory notice is
no ground to urge that under Section 219, Cr.P.C., the
prosecution laid against the petitioner is not maintainable.
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16. In the case on hand, though the act of issuance of 16
cheques was on different dates, in view of the fact that a demand
was made by issuing a common notice, the complaint cannot be
said to be vitiated. To put it clear, though the giving of cheques
by the accused to the complainant may be on different dates, all
those acts of giving those cheques were merged together to form
the same transaction viz., the presentation of the cheques
together was on one particular date. In view of the fact that
demand was also made by the complainant on the dishonouring
of the cheques by giving one lawyer's notice and not several
demands, we are of the view that the accused may be charged
and tried at one trial for several such offences because the series
of acts are so inter-linked or inter-connected together so as to
form the same transaction of dishonouring the cheques,
therefore, it cannot be said that the complaint is vitiated.”
26. Following the Manjula judgment of the Division Bench, the later
judgments in M/s KaizerTrade Ventures –vs- M/s Sudha Enterprises and
Thenmozhi –vs- Subramanian favoured filing single complaints for more
than three cheques if they form part of same transaction.
27. The judgment of the Supreme Court rendered in the Suo motu writ
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petition been relied by the petitioner which is in respect of suggestion to
amend Section 219 Cr.P.C to facilitate filing of single complaint between
same parties for multiple cheques to avoid multiplicity of proceedings. The
discussion and observation of the constitutional Bench of 5 Learned Judges
regarding Sections 219 and 220 of Cr.P.C qua Section 138 of NI Act are
under:-
“ Section 219 and 220 of the Code:
13. Section 219 of the Code provides that when a
person is accused of more offences than one, of the same
kind, committed within a space of 12 months, he may be
tried at one trial for a maximum of three such offences. If
more than one offence is committed by the same person in
one series of acts so committed together as to form the same
transaction, he may be charged with and tried at one trial,
according to Section 220. In his preliminary report, the
learned Amici Curiae suggested that a legislative amendment
is required to Section 219 of the Code to avoid multiplicity
of proceedings where cheques have been issued for one
purpose. In so far as Section 220 of the Code is concerned,
the learned Amici Curiae submitted that same/similar
offences as part of the same transaction in one series of acts
may be the subject matter of one trial. It was argued by the
learned Amici Curiae that Section 220(1) of the Code is not
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controlled by Section 219 and even if the offences are more
than three in respect of the same transaction, there can be a
joint trial. Reliance was placed on a judgment of this Court
in Balbir v. State of Haryana & Anr. ((2000) 1 SCC 285) to
contend that all offences alleged to have been committed by
the accused as a part of the same transaction can be tried
together in one trial, even if those offences may have been
committed as a part of a larger conspiracy.
14. The learned Amici Curiae pointed out that the
judgment of this Court in Vani Agro Enterprises v. State of
Gujarat & Ors. (2019 (10) SCJ 238) needs clarification. In
Vani Agro (supra) this Court was dealing with the dishonour
of four cheques which was the subject matter of four
complaints. The question raised therein related to the
consolidation of all the four cases. As only three cases can
be tried together as per Section 219 of the Code, this Court
directed the Trial Court to fix all the four cases on one date.
The course adopted by this Court in Vani Agro (supra) is
appropriate in view of the mandate of Section 219 of the
Code. Hence, there is no need for any clarification,
especially in view of the submission made by the learned
Amici that Section 219 be amended suitably. We find force
in the submission of the learned Amici Curiae that one trial
for more than three offences of the same kind within the
space of 12 months in respect of complaints under Section
138 can only be by an amendment. To reduce the burden on
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the docket of the criminal courts, we recommend that a
provision be made in the Act to the effect that a person can
be tried in one trial for offences of the same kind under
Section 138 in the space of 12 months, notwithstanding the
restriction in Section 219 of the Code.
15. Offences that are committed as part of the same
transaction can be tried jointly as per Section 220 of the
Code. What is meant by "same transaction" is not defined
anywhere in the Code. Indeed, it would always be difficult to
define precisely what the expression means. Whether a
transaction can be regarded as the same would necessarily
depend upon the particular facts of each case and it seems to
us to be a difficult task to undertake a definition of that
which the Legislature has deliberately left undefined. We
have not come across a single decision of any court which
has embarked upon the difficult task of defining the
expression. But it is generally thought that where there is
proximity of time or place or unity of purpose and design or
continuity of action in respect of a series of acts, it may be
possible to infer that they form part of the same transaction.
It is, however, not necessary that every one of these elements
should co-exist for a transaction to be regarded as the same.
But if several acts committed by a person show a unity of
purpose or design that would be a strong circumstance to
indicate that those acts form part of the same transaction
(State of Andhra Pradesh v. Cheemalapati Ganeswara Rao
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& Anr., (1964) 3 SCR 297). There is no ambiguity in
Section 220 in accordance with which several cheques issued
as a part of the same transaction can be the subject matter of
one trial.
.......
......
24.The upshot of the above discussion leads us to the
following conclusions:
(1)......
(2)......
(3).....
(4)We recommend that suitable amendment be made
to the Act for provision of one trial against a person for
multiple offences under Section 138 of the Act committed
within a period of 12 months, notwithstanding the restriction
in Section 219 of the Code.”
28. As far as the facts and circumstances of the instance case, it is
similar to the facts found in Suryakant V Kanakia –vs- Muthukumaran
( MANU/TN/0072/2004) and Manjula –vs- Colgate Palmolive ( India) Ltd.
( 2006(5) CTC 303. Therefore, the single complaint under Section 138 of NI
Act for dishonour of 36 cheques is maintainable in view of the convergence
of the events by presenting the cheques on same day, return of the cheques
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on same day besides causing single notice common to all the cheques.
29. The second point for consideration is whether the Account
blocked by the Enforcement Directorate or Income Tax Department will
protect the drawer from prosecution under Section 138 of NI Act.
30. Section 138 of the NI Act envisages two contingencies to attract
prosecution. They are:
(1)the amount of money standing in the account
must be insufficient to honour the cheque or
(2)the cheque amount should exceeds the amount
arranged to be paid.
31. Though account blocked is not specifically mentioned as a reason
for dishonour to attract Section 138 of NI Act, the judicial pronouncements
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had made it clear that the two contingencies mentioned in the Section 138 of
the NI Act are genus, the reasons like account closed, stop payment,
signature differs etc., are species. If the complaint disclosed that the subject
cheque was given without sufficient fund or in excess of arrangement, the
other reasons which are species to the genus will follow to proceed under
Section 138 of NI Act.
32. In this regard, it is profitable to refer the observation of the
Supreme Court judgment in Laxmi Dyechem v. State of Gujarat reported
in [(2012) 13 SCC 375]:-
“We find ourselves in respectful agreement with the
decision in Magma case (NEPC Micon Ltd. v. Magma
Leasing Ltd. (1999) 4 SCC 253) that the expression “amount
of money … is insufficient” appearing in Section 138 of the Act
is a genus and dishonour for reasons such “as account
closed”, “payment stopped”, “referred to the drawer” are
only species of that genus. Just as dishonour of a cheque on
the ground that the account has been closed is a dishonour
falling in the first contingency referred to in Section 138, so
also dishonour on the ground that the “signatures do not
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match” or that the “image is not found”, which too implies that
the specimen signatures do not match the signatures on the
cheque would constitute a dishonour within the meaning of
Section 138 of the Act. (emphasis supplied).”
33. If the above logic and analogy is applied, it is amply clear that in
cases of ‘account block’ or ‘account freezed’ complaint under Section 138 of
NI Act is maintainable, if the complainant prima facie satisfies that in the
account there was no sufficient fund to honour. As supreme court has held,
the genus of the crime is any one of the contingencies envisaged under
Section 138 of NI Act. If the complaint discloses that dehors of account
block or account freeze and even otherwise, the cheque could not been
passed due to want of fund in the account, the drawer of the cheque cannot
take umbrage under the fact that his account is blocked or freezed. Issuing
the cheque without sufficient fund to honour is the genus of the crime.
34. The Learned Counsel for the petitioners referring the KYC
information given by the Bank claims that on the date of the cheque, in the
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petitioner account more than Rs.10 crores lying in the account. The said
contention of the petitioner does not appear to be factually correct. The letter
of the IOB dated 01/03/2022 addressed to the Sub-Inspector of Police, CCB
– Team IV discloses that as per Income Tax order dated 28/01/2020 a lien of
Rs.53,13,298/- created. The petitioner account has become NPA due to
failure of repayment of loan and as on 01/03/2022 a sum of
Rs.10,78,25,666.91 remain in debit. The statement of account enclosed with
the KYC details further discloses that between 14/08/2020 and 30/09/2020,
the dates of the cheques, the petitioner firm had debit of Rs.9,33,83,328.46
and no credit in his account as claimed.
35. The further contention of the petitioners that the KYC detail from
the bank discloses that the cheques which are subject matter of the
complaints were issued to the account holder by the Bank on 23/07/2018
(Cheque No. 901286) and on 15/04/2019 (Cheque Nos:901318 to 901352)
are not evidence to disprove the case of the complainant that those cheques
were not given by the accused/petitioners on 14/08/2020 or on subsequent
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dates.
36. Regarding the third petitioner/third accused, the petitioners
contention is that she is not a partner of the first accused firm. Whereas in
the complaint it is specifically stated that she had been in active participation
of the business and with her knowledge the goods were sold and cheques
were issued. These facts are being disputed, it is for the parties to establish
their case through evidence in the course of trial. This Court cannot venture
into testing the veracity of facts in dispute while dealing the quash petition in
exercise of the inherent power under the Code.
37. As a result, in the facts and circumstances of this case, this Court
hold that, filing of single complaint for dishonouring 36 cheques is
maintainable since the transaction is in respect of supply of goods on
14/08/2020 and default in payment. The cheques were given to discharge the
debt arising on the single transaction. The numerous cheques given for
clearing the debt, returned on the same day. Complaint is filed after causing
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common notice. Hence the dictum laid by the Division Bench of this Court
in Manjula case squarely applies to the case in hand.
38. The cheques were returned with endorsement “account blocked.
Situation covered in 2125”. On the date of presentation of the cheque or
even on the date of the cheque, the petitioners had no sufficient fund to
honour it or made arrangement with bank to honour the cheques. The
balance in the account running in debit. Therefore, applying the dictum of
the Hon’ble Supreme Court in NEPC –vs- Magma case and in Laxmi
Dyechem v. State of Gujarat the prima facie case of the complainant that
the cheques were issued exceeding the arrangement with Bank satisfies the
second contingency envisaged under Section 138 of NI Act. Therefore the
complaint under Section 138 of Negotiable Instruments Act, 1881 as against
these petitioners is maintainable.
39. In fine, this Criminal Original Petition stands dismissed as
devoid of merit. Consequently, connected Miscellaneous Petitions are
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closed.
17.10.2024
Index:yes
Internet:yes
Speaking order:yes/no
Neutral Citation:yes/no
ari
To:
IV Fast Track Court, Metropolitan Magistrate at George Town, Chennai
DR.G.JAYACHANDRAN,J.
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ari
delivery order made in
and
Crl.M.P.Nos.12190 & 12191 of 2024
17.10.2024
https://www.mhc.tn.gov.in/judis
