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VIJAY AHUJA ..... Petitioner
Through: Mr. Sanjeev Agarwal, Adv.
Through: Mr. Mukesh Kumar, APP for the State.
JUDGMENT
1. The petitioner is facing criminal prosecution on the accusations of he having committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 on the basis of criminal complaint case no.11086/2014 initiated by the second respondent (complainant) in the court of the Metropolitan Magistrate, Delhi, he having been summoned, after preliminary inquiry, by order dated 09.02.2015. The accusations relate to non-payment of the value of the cheque no.484425 for Rs.20,00,000/- statedly drawn by the petitioner against his account with ICICI Bank Ltd., Delhi in favour of the complainant which, upon presentation, was returned unpaid by the bank. The petitioner failed to make any payment inspite of service of notice of demand. 2018:DHC:4437
2. The petitioner invokes the jurisdiction of this court under Section 482 of the Code of Criminal Procedure, 1973 to pray for quashing of the said criminal complaint case on the ground it is an abuse of the process of the court.
3. The background facts leading to the filing of the complaint case are set out in the complaint by the second respondent as under:
4. It is the argument of the petitioner that the complainant had filled in the date in the cheque which was admittedly issued as “undated” and therefore, it is a case of material alteration of the negotiable instrument, rendering it invalid. Reliance is placed on Jayantilal Goel Vs. Zubeda Khanum, AIR 1986 AP 120, Ramakannan vs. Chettiar & Co., (2007) 1 LW (Cri) 527 and BPDL Investment Vs. Maple Leaf Trading, 129 (2006) DLT 94. It is also the submission of the petitioner that the cheque in question was issued as “security” and, therefore, it did not represent a cheque handed over for discharge of legally enforceable debt and consequently the criminal prosecution under Section 138 of the Negotiable Instruments Act cannot be launched on such basis. Reliance is placed on M.S. Narayan Menon Vs. State of Kerala and Anr., (2006) 6 SCC 39 and Prajan Kumar Jain Vs. Ravi Malhotra, 1 (2010) BC 8.
5. The second above-noted submission cannot be accepted, without evidence being led in support in as much as the averments in the complaint that the petitioner had undertaken the liability to pay has been supported by evidence adduced during pre-summoning inquiry on basis of which the impugned order has been passed, it being the burden of the petitioner to refute such facts at the trial.
6. The first above-said submission is also found to be without merit. The three judgments cited, they having been rendered by learned single Judges of the High Courts of Andhra Pradesh, Madras and of this court are apparently per incuriam in as much as they do not seem to take into account the provision contained in Section 20 of the Negotiable Instruments Act, 1881, which reads thus:-
8. The fact that the petitioner had handed over an undated cheque, in the given facts and circumstances would ordinarily lead to presumption of grant of authority to the payee i.e. the complainant to fill in the date. The assertion of the petitioner that there was no such authority gives rise to a question of fact which cannot be answered without both parties being called upon to adduce evidence.
9. Similar contentions raised in Vijender Singh Vs. M/s. Eicher Motors Limited and Anr., 2011 SCC Online Del 2095, again in the backdrop of a prosecution under Section 138 of the Negotiable Instruments Act, 1881 and in Puneet Kumar Agarwal Vs. M/s. Imaginations Agri Exports & Ors., 2013 SCC Online Del 701, in the context of a summary suit under Section 37 of the Code of Civil Procedure, 1908 were rejected by learned single judge of this court, the latter decision being based, inter alia, on the provision contained in Section 20 quoted above and the view taken in T. Nagappa (supra).
10. For the foregoing reasons, the petition and the application filed therewith are dismissed.
JUDGE JULY 23, 2018 yg