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DELHI HIGH COURT
Suresh Kait, J.
Four Seasons Energy Ventures Pvt. Ltd.
and Ors. —Petitioners
versus
State of NCT of Delhi & Anr. —Respondents
Cri MC 1648 of 2011 and Cri MA No. 6036 of 2001
Decided on 3.7.2012
IMPORTANT POINTS
(1)There is no requirement that Complainant must specifically allege in complaint that there was a subsisting liability.
(2) Jural concept of consideration requires that something of value must be given and that this can either be a benefit to promissor or some detriment to promisee.
Headnote:(i) Negotiable Instruments Act, 1881—Sections 138 and 139—Criminal Procedure Code, 1973—Section 482—Dishonour of cheque—Complaint—Petitioner issued cheque because of fact that if petitioner would not be able to pay his dues cheque can be used for enforceable debt—Respondent rightly presented cheque in bank—Petitioners were duty bound to settle amount failing which, they are responsible for offence punishable under Section 138 of Negotiable Instruments Act—There is no requirement that Complainant must specifically allege in complaint that there was a subsisting liability—Burden of proving that there was no existing debtor liability was on respondents—This they have to discharge in trial—At this stage, merely on basis of averments in Petitions filed by them High Court could not have concluded that there was no existing debt or liability—Petition dismissed. (Paras 4 and 5)
(ii) Words and Phrases—Debt and Liability—Expression “other liability” cannot be construed as akin to preceding word “debt”—Expression “other liability” can take its meaning and colour from preceding word “debt” only if rule of ejusdem generis is held to be applicable—Rule of ejusdem generis is applicable when words pertaining to a class, category or genus are followed by general words—In such a case, general words take their meaning from preceding particular words because legislature by using particular words of a distinct genus has shown its intention to that effect—Before rule of ejusdem generis is applied it is a pre-requisite that there must be a distinct genus which must comprise of more than one species—Consequently, if a general word follows only one particular word, that single particular word does not constitute a distinct genus and T rule of ejusdem generis cannot be applied in such a case—If given its full meaning, expression “other liability” within its broad sweep would include any “liability to pay”. (Paras 17, 18 and 23)
(iii) Negotiable Instruments Act, 1881—Section 138—Contract Act, 1872—Section 2(d)—Dishonour of cheque—Distinction has to be drawn between a cheque issued as security and a cheque issued towards discharge of a liability to pay notwithstanding that money is by way of security for due performance of contract—A cheque given as security is not to be encased in praesenti—It becomes enforceable if an obligation is future is not enforced—It is not tendered in discharge of a liability which has accrued—Where a cheque forms part of a consideration under a contract it is paid towards a liability—Consideration is a very wide term and is not restricted to monetary benefit—Consideration does not necessarily means money in return of money or money in lieu of goods or service—Any benefit or detriment of some value can be a consideration. (Para 14)
Suresh Kait, J.— Vide the present petition, the petitioner is seeking quashing of the complaint filed by the respondent No. 2 for the offence punishable under Section 138 of the Negotiable Instruments Act, for the reasons that the said compliant is not maintainable as the cheque in question, presented and was dishonoured, was issued towards Security and not towards any lawful outstanding debt or dues.
2. The brief facts of the case are that the petitioner No.1 and Criminal M.C. 1648 of 2011 Page 1 of 25 respondent No. 2 entered into an agreement dated 19.2.2010, in respect of supply of Iron-ore to one M/s Glencore International AG., a company in Switzerland. As per the agreed terms, the petitioners with a covering letter, contemporaneously executed three documents in favour of respondent No.2, wherein, it was specifically mentioned that the three documents were being executed by the petitioners as Security for Mobilisation Advance. The details of the three documents executed by the petitioners are as under:
(A) Promissory Note dated 19.2.2010 for Rs.2.50 crores;
(B) Cheque bearing No. 909722, dated 19.2.2010 for Rs.2.50 crores; and
(C) Bank Guarantee dated 19.2.2010 for RS.1.25 crores.
3. The respondent No.3 on receipt of Security Documents i.e. Cheque, Promissory Note and Bank Guarantee from the petitioners and got released Rs.2.50 crores from its banker in favour of the petitioner on 22.3.2010. The respondent No.2 presented the cheque bearing 909722 dated 19.2.2010 for a sum of Rs.2.50 crores.
4. The respondent No.2 received a Memo dated 8.8.2010 from its Bankers with the endorsement “Exceed Arrangements”. The respondent No.2, allegedly got issued Notice dated 26.8.2010 to the petitioners, which was dispatched on 27.8.2010.
5. Mr. Kailash Vasudev, learned Sr. Advocate appearing for the petitioners submitted that the aforementioned legal notice was duly served upon the petitioners on 31.8.2010, thereafter, the respondent’ filed a complaint under Section 138 Negotiable Instruments Act in the court of learned CMM, Tis Hazari Courts, Delhi, vide CC No. 648 RN 10. The trial court took cognizance on 16.11.2010, after considering the Pre-summoning-evidence of the complainant/respondent No. 2 and issued summons to the petitioners.
6. On 9.2.2011, the petitioners appeared before the trial court through counsel, when the matter was adjourned to 06.07.2011 for appearance of the petitioners, framing of notice and recording of plea of defence, if any.
7. Ld. Sr. counsel submitted that the petitioners are aggrieved by the aforesaid complaint, hence, filed the instant petition on the ground that the aforesaid cheque was issued as a Security only and not towards any lawful debts or dues. To strengthen his arguments, learned counsel has relied upon a case of M.S. Narayana Menon @ Mani v. State of Kerala and Anr.1 wherein, the Apex court has observed as under:
“57. We in the facts and circumstances of this case need not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part at the said amount has not been proved. The Appellant clearly said that nothing to due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act.”
8. In another case of Sudhir Kumar Bhalla v. Jagdish Chand and Ors.2 the Apex court has observed as under:
“22. On examination of the above-stated findings of the learned Single Judge in the judgment impugned before us, we find that t
