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.J HIGH COURT OF DELHI
CRL.M.C. 3381/2011
ANUJ SHARMA
Through:
CRL.M.C. 3381/2011
ANUJ SHARMA
Through:
VERSUS
..... Petitioner Mr. Vinod K. Singh, Advocate
EXCEL SOFTECH PRIVATE LTD. ..... Respondent
Through: Mr. Arun Aggarwal, Advocate
EXCEL SOFTECH PRIVATE LTD. ..... Respondent
Through: Mr. Arun Aggarwal, Advocate
CRL.M.C. 3386/2011
ANUJ SHARMA
Through:
ANUJ SHARMA
Through:
VERSUS
..... Petitioner Mr. Vinod K. Singh, Advocate
EXCEL SOFTECH PRJVATE LTD. ..... Respondent
Through: Mr. Arun Aggarwal, Advocate
EXCEL SOFTECH PRJVATE LTD. ..... Respondent
Through: Mr. Arun Aggarwal, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
/o 04.10.2013 .J The above-captioned two petitions relates to two complaints J under Section 138 of Negotiable Instrument Act, 1881. Above captioned first petition pertains to dishonouring of three cheques of
~20 lac each whereas the above captioned second petition relates to dishonour of two cheques of<'4,50,000/- and ~90,000/- respectively.
With the consent of learned counsel for the parties, the above captioned two petitions were heard together, as challenge to the
Crl.M.Cs.No.3381 & 3386 of2011 Page 1 J 2013:DHC:6895 impugned order of 6th September 2011 rejecting petitioner's application under Section 145 (2) of Negotiable Instrument Act, 1881 is on identical grounds and vide this common order, these two petitions are being disposed of.
Impugned order upholds trial court's order dismissing petitioner's application under Section 145(2) of Negotiable
Instruments Act, 1881 while noting the factual position and by holding that from the Memorandum of Understanding on record, the payment of the cheque amount stands established and petitioner does not dispute having signed the cheques in question and so no plausible defence is disclosed.
Learned counsel for the petitioner assails the impugned order
J by contending that in support of the application under Section 145 (2) · J of Negotiable Instruments Act, 1881 an affidavit of petitioner has been placed on record to assert that respondent-complainant needs to be cross examined as to why respondent would pay a huge sum of
~60 lac when there was a dispute between them regarding the payment of alleged dues of ~50 lac. It was vehemently contented on behalf of the petitioner that the Memorandum of Understanding of
17th August, 2009 was sham transaction with a view to advance loan of ~60 lac to petitioner by respondent and respondent had induced petitioner to sign the cheques in question as security cheque for the . J loan advance but the loan transaction did not get through and respondent - complainant need to be cross examined as to how huge sum of ~60 lac was advance in cash. Reliance was placed by learned
Crl.M.Cs.No.3381 & 3386 of 2011 Page 2 .J counsel for petitioner upon Apex Court decision in M/s Mandvi Co-op
Bank Ltd. Vs. Nimesh S. Thakore 2010 (1) JCC (NT) 42 to contend that the right conferred under Sub-Section 2 of Section 145 of
Negotiable Instruments Act, 1881 is an absolute and unqualified right and so impugned order as well as trial court's order deserves to be quashed and petitioner's application under Section 145 (2) of
Negotiable Instruments Act, 1881 ought to be allowed.
Learned counsel for respondent-complainant supports the J impugned order and submits that no plausible defence is disclosed by petitioner and so rejection of petitioner's application under Section
145 (2) ofNegotiable Instruments Act, 1881 is well merited.
Upon hearing both the sides and on perusal of the impugned order, trial court's order, material on record and the decision cited, I find that the purported defence of petitioner cannot be brushed aside being unjustifiable and an effective opportunity to be granted to the petitioner to cross examine respondent-complainant as the transaction, which is the subject matter of Memorandum of Understanding is itself· J disputed. Neither trial court's order nor impugned order takes note of the legal position regarding the scope and ambit of Sub-Section 2 of
Section 145 of Negotiable Instruments Act, 1881 as reiterated by
Apex Court in Mandvi Co-op Bank Ltd. (Supra) and so impugned order and trial court's order rendered unsuccessful. Resultantly, both these petitions succeeds and the impugned order as well as trial court's order are quashed and the application of the petitioner under
Section 145 (2) of Negotiable Instruments Act, 1881 in the two
Crl.M.Cs.No.3381 & 3386 of 2011 Page 3 · J \) complaints iri question are allowed.
The above captioned two petitions are accordingly disposed of. · _;
OCTOBER 04, 2013 sanjay .J.J Crl.M.Cs.No.3381 & 3386 of 2011 Page 4
.J
/o 04.10.2013 .J The above-captioned two petitions relates to two complaints J under Section 138 of Negotiable Instrument Act, 1881. Above captioned first petition pertains to dishonouring of three cheques of
~20 lac each whereas the above captioned second petition relates to dishonour of two cheques of<'4,50,000/- and ~90,000/- respectively.
With the consent of learned counsel for the parties, the above captioned two petitions were heard together, as challenge to the
Crl.M.Cs.No.3381 & 3386 of2011 Page 1 J 2013:DHC:6895 impugned order of 6th September 2011 rejecting petitioner's application under Section 145 (2) of Negotiable Instrument Act, 1881 is on identical grounds and vide this common order, these two petitions are being disposed of.
Impugned order upholds trial court's order dismissing petitioner's application under Section 145(2) of Negotiable
Instruments Act, 1881 while noting the factual position and by holding that from the Memorandum of Understanding on record, the payment of the cheque amount stands established and petitioner does not dispute having signed the cheques in question and so no plausible defence is disclosed.
Learned counsel for the petitioner assails the impugned order
J by contending that in support of the application under Section 145 (2) · J of Negotiable Instruments Act, 1881 an affidavit of petitioner has been placed on record to assert that respondent-complainant needs to be cross examined as to why respondent would pay a huge sum of
~60 lac when there was a dispute between them regarding the payment of alleged dues of ~50 lac. It was vehemently contented on behalf of the petitioner that the Memorandum of Understanding of
17th August, 2009 was sham transaction with a view to advance loan of ~60 lac to petitioner by respondent and respondent had induced petitioner to sign the cheques in question as security cheque for the . J loan advance but the loan transaction did not get through and respondent - complainant need to be cross examined as to how huge sum of ~60 lac was advance in cash. Reliance was placed by learned
Crl.M.Cs.No.3381 & 3386 of 2011 Page 2 .J counsel for petitioner upon Apex Court decision in M/s Mandvi Co-op
Bank Ltd. Vs. Nimesh S. Thakore 2010 (1) JCC (NT) 42 to contend that the right conferred under Sub-Section 2 of Section 145 of
Negotiable Instruments Act, 1881 is an absolute and unqualified right and so impugned order as well as trial court's order deserves to be quashed and petitioner's application under Section 145 (2) of
Negotiable Instruments Act, 1881 ought to be allowed.
Learned counsel for respondent-complainant supports the J impugned order and submits that no plausible defence is disclosed by petitioner and so rejection of petitioner's application under Section
145 (2) ofNegotiable Instruments Act, 1881 is well merited.
Upon hearing both the sides and on perusal of the impugned order, trial court's order, material on record and the decision cited, I find that the purported defence of petitioner cannot be brushed aside being unjustifiable and an effective opportunity to be granted to the petitioner to cross examine respondent-complainant as the transaction, which is the subject matter of Memorandum of Understanding is itself· J disputed. Neither trial court's order nor impugned order takes note of the legal position regarding the scope and ambit of Sub-Section 2 of
Section 145 of Negotiable Instruments Act, 1881 as reiterated by
Apex Court in Mandvi Co-op Bank Ltd. (Supra) and so impugned order and trial court's order rendered unsuccessful. Resultantly, both these petitions succeeds and the impugned order as well as trial court's order are quashed and the application of the petitioner under
Section 145 (2) of Negotiable Instruments Act, 1881 in the two
Crl.M.Cs.No.3381 & 3386 of 2011 Page 3 · J \) complaints iri question are allowed.
The above captioned two petitions are accordingly disposed of. · _;
OCTOBER 04, 2013 sanjay .J.J Crl.M.Cs.No.3381 & 3386 of 2011 Page 4
.J
JUDGMENT