A cheque issued as security can incur liability under Section 138 if a legally enforceable debt exists at the time of its presentation.

JUDGMENT :

AMIT SHARMA, J.

1. The present petition under Section 482 of the Code of Criminal Procedure, 1973, (for short, ‘CrPC’) has been filed seeking the following prayers: -

“In light of the foregoing facts, it is humbly prayed that this Hon’ble Court may be pleased to:

a) Quash and set aside the complaint bearing CC No. 9656/2019 pending before the Ld. Metropolitan Magistrate, Tis Hazari, New Delhi; and/or

b) Quash and set aside the Final Order dated 07.01.2020 passed by the Ld. Metropolitan Magistrate Tis Hazari Court Complex, New Delhi in complaint bearing CC No. 9656/2019

c) Pass other and such orders as this Hon’ble Court deems fit in the interest of justice.”

2. The present petition arises out of complaint, CC No. 9656/2019, under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881, (for short, ‘NI Act’) filed by the respondent/company against the petitioner. Necessary averments in the complaint filed by the respondent/company are as under: -

“3 . That the Accused is the Sole proprietor of Mans Marketing and incharge for day to day affairs and responsible for conduct of the business of Mans Marketing being its sole proprietor. The Accused is also the signatory of cheque in question.

4. That the Accused approached the Complainant Company and represented that the Accused has been doing his business as Sole Proprietor of Mans Marketing and has experience in sales promotion for various clients and necessary wherewithal in the food packaging industry and have lot of links with various customers in the said industry. The Accused also represented that he could help the Complainant Company with the development of sales in the territory of Indore as the Accused had had its base there for the past so many years and was well connected in the industry circles. Based on the representations and warranties of the Accused, the Complainant Company appointed the Accused as its agent and an ’Agreement with Commercial Agent’ dated 01.12.2017 was executed between the Accused and the Complainant, hereinafter referred to as the ’Agreement’

5. That as per the terms and conditions of the Agreement, the Accused was required to promote sales of the products of the Complainant Company with the diligence of a good merchant and a responsible businessman. As per terms and conditions agreed with the Accused, the Accused was responsible for regular sales of products of the Complainant Company, timely collection and/payment for the sales made through the Accused to different customers and to make payment to the Complainant.

6. That in furtherance of the said Agreement, the Accused represented to have made the following sales and the goods were accordingly supplied by the Complainant Company as per instructions of the Accused and were delivered to the concerned as per details below: -

7. That out of the above, Mr. Manoj Nagar was able to get payment of Rs. 1,11,973/- from Arcox Multipack Private Limited only. No other purchaser has made any direct payment to complainant. I say that the Accused is thus liable to pay the amount of Rs. 10,14,367/- (Rupees Ten lakhs fourteen thousand three hundred sixty seven only). Apart from the above, the Accused is also liable and the Complainant