The Negotiable Instruments Act, 1881 - Section 138 - The
issuance of cheque gives rise to a presumption of the amount being due and
consequently an acknowledgment rendering the plea of debt being time barred
inconsequential. It will be for the petitioner to show at the trial that the
amount was not due or that the cheque had not been issued to the complainant.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CORAM: HON'BLE MR. JUSTICE R.K.GAUBA
Decided on: 16th January, 2019
CRL.M.C. 4123/2016 and Crl. M.A. 17183/2016
SMT TARUN SAMDARSHI ..... Petitioner Through: Mr. Som Dutt Kaushik,
Advocate versus STATE (NCT OF DELHI) & ANR ..... Respondents Through: Mr.
Sanjeev Sabharwal, APP for State Mr. M.K. Mishra, Advocate for R-2
O R D E R
1. The petitioner has been summoned as accused in criminal complaint case
(CC 6383/2016) instituted by the second respondent (complainant) alleging
offence punishable under Section 138 of the Negotiable Instruments Act, 1881
having been committed on account of no payment of amount due inspite of the
notice of demand issued and served in the wake of dishonour of cheque bearing
no.426715 dated 13.05.2016, for a sum of Rs.12 Lakhs, which had been issued by
the petitioner (accused). The petitioner assails the summoning order passed by
the Additional Chief Metropolitan Magistrate on 17.09.2016, on the basis of
preliminary evidence invoking the inherent power and jurisdiction of this court
under Section 482 of the Code of Criminal Procedure, 1973 (Cr. PC) primarily on
the ground that the debt of Rs.12 Lakh which was purportedly to be repaid by
the cheque in question was extended in June 2012 and therefore, it has become
time barred and thus the cheque represented an amount which was legally not
recoverable and consequently not due. It is also orally submitted that the
cheque was not issued to the complainant but instead had been handed over to
someone else.
2. Having heard the learned counsel for the petitioner, this court is of
the view that the petition at best raises questions of fact which cannot be
answered or addressed effectively without a proper inquiry or trial and,
therefore, cannot be permitted to be raised in the jurisdiction under Section
482 Cr. PC. [see Rajiv Thapar and Ors. Vs. Madan Lal Kapoor, (2013) 3 SCC
330]. The counsel for the petitioner, however, persisted that this court
renders a decision on the above mentioned contentions.
3. This court is of the view that filing of the petition itself is an
abuse of the process of law. The issuance of cheque gives rise to a presumption
of the amount being due and consequently an acknowledgment rendering the plea
of debt being time barred inconsequential. It will be for the petitioner to
show at the trial that the amount was not due or that the cheque had not been
issued to the complainant. The reliance placed on Exports India and Anr. Vs.
State and Anr., 2006 SCC Online Del 1155, a decision rendered by a learned
single judge of this court, is misplaced as the facts are wholly
distinguishable.
4. The petition and the application filed therewith are dismissed with
costs of Rs.25,000/-.