The court upheld the validity of a dishonored cheque under Section 138 of the N.I. Act, allowing simultaneous proceedings under the N.I. Act and SARFAESI Act, emphasizing the distinct purposes of each.

JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. The petitioner herein has prayed for quashing the impugned proceeding being C.S No. 29044 of 2019 initiated under section 138 of Negotiable Instrument Act (N.I. Act) which is presently pending before judicial Magistrate 18th Court Calcutta.

2. The petitioner being a partnership firm namely M/s Madhusuhdan Garai, entered into a dealership agreement with Honda Motor Cycle and Scooter India Pvt. Ltd. Aforesaid firm proposed for financial assistance to the opposite party No. 2, who sanctioned Rs. 6.50 Crores on the terms and conditions mentioned in the sanctioned letter dated 24.09.2018.

3. Petitioner’s further contention is that some dispute and differences arose between said Firm and Honda Motor Cycle and Scooter India Pvt. Ltd. and for which business of the firm were badly hampered and the firm suffered huge loss and damages. In the said backdrop, the said firm requested opposite party no. 2 to restructure the loan limit by reducing it from Rs. 6.50 to 3.25 crores and to convert the balance 3.25 crores into a term loan for the period of three years, which was not accepted by the opposite party no. 2/bank and on the contrary by issuing a letter dated 14th February 2019, they called upon the said firm to deposit Rs. 6,60,04,570.84P, failling which the account will be classified as non-performing asset (NPA).

4. Petitioner further contended that the firm immediately gave its reply and also apprised them regarding the dispute between the firm and Honda Motor Cycle Ltd. and the firm also proposed to pay 10% to 20% of the outstanding amount and further requested them to allow for making payment of the balance amount in easy installments. Thereafter the firm again issued a detailed letter on 19.02.2019 with the same prayer, but the opposite party no. 2 did not consider it’s request made in the aforesaid two letters and on the contrary issued a letter on 2nd March, 2019, threatening that the said firm will be declared as willful defaulter. The firm by its letter dated 13.03.2019 requested the opposite party no. 2/bank not to declare them as wilful defaulter without following the Reserve Bank guideline and the firm also requested the opposite party no. 2/bank to reschedule the payment of the bank within a reasonable and easy process and not to initiate any proceeding as they have a genuine intention to repay the loan to the opposite party no. 2/bank, but the bank did not consider such request.

5. Petitioner further contended that said firm had also given proposal to take back unsold two wheelers lying, in the custody of the said firm but the bank did not take any step so far and the unsold two wheelers worth Rs. 1 crore and odd is unnecessarily being damaged and /or depreciating in the godown of said firm. As the bank/opposite party no. 2 did not consider the grievance of the firm, the firm and it’s partners being aggrieved by the non action on the part of the bank filed a Writ Petition before this Court being WPA No. 8434(W) of 2019, which was disposed of by this Court on 24.04.2019 on the grounds mentioned therein.

6. Thereafter, the firm received a message from it’s banker that a cheque for Rs. 6,02,91,895/- has been dishonored due to insufficient fund. The firm issued a letter to the opposite party no. 2/bank not to take any step for the alleged outstanding amount mentioned in the cheque, by a letter dated 13th May, 2019. Be it also mentioned that said firm also received a notice issued by the bank on 13th May, 2019 under section 13(2) of the SARFAESI Act, 2002 calling upon the firm to pay the sum of Rs. 6,02,91,895/-.

7. Being aggrieved by the aforesaid criminal proceeding initiated by the bank under section 138 of the N.I. Act the petitioner contended that the other accused persons are the sleeping partners of the said partnership firm which have availed loan facility from O.P. No. 2 and accused no. 2 namely Sangramjit Garai is the signatory of the alleged cheque but he is not the petitioner herein.