The impermissibility of a second complaint and cheque presentation during the pendency of the first case, lack of jurisdiction due to pending cases in different courts, and the mandatory nature of the inquiry under Section 202 Cr.P.C.

JUDGMENT

1. The petitioner is an accused in complaint case No. 1701/2021. In the instant petition under Section 482 Cr.P.C, the petitioner has challenged the complaint petition as well as order of cognizance dated 9.4.2021 passed in the aforesaid complaint case and the subsequent orders of summons and issuance of warrant of arrest.

The challenge is on the ground that the complaint petition as well as cognizance order both suffer from non compliance of mandates of law rather they are contrary to the provisions of law.

2. The factual matrix of the case is that the petitioner is Director of Mercator Limited Company, a company incorporated under the Companies Act. The respondent Anand Rathi Global Finance Limited is a non banking company. On 3.11.2017, the petitioner and respondent Company executed a loan agreement at Mumbai for a credit facility in the nature of working capital loan for a sum of Rs. twenty crores. At the time of execution of loan agreement, the petitioner had submitted certain documents including post dated cheques with clear stipulation in the agreement that those cheques may be used by the lender in realization of due amount.

Initially, the loan agreement was for one year however, it was extended till 2.11.2019 only after the petitioner furnished double the security amount. On failure of the petitioner to pay back the loan amount, a demand notice of rupees eighteen crore sixteen lacs five thousand seven hundred and seventeen only was served on the petitioner. Thereafter, one of the post dated cheque deposited with the respondent bearing cheque No. 000149 of the total due amount of rupees eighteen crores and odd as referred above was placed before the Bank at Mumbai on 2.8.2019 for clearance. On 6.8.2019, the cheque was dishonoured for the reason for insufficient funds. Thereafter respondent sent a legal notice on 13.8.2019 to the petitioner and the petitioner vide his reply denied the allegations. Thereafter Respondent No.2 filed a complaint case bearing CC No. 5238/SS/2019 before the learned Metropolitan Magistrate, Ballard Pier, Mumbai. During pendency of the aforesaid complaint case, the respondent used another post-dated cheque bearing No. 000150 dated 22.2.2021 of rupees twenty crores which included interest on already due amount of rupees eighteen crores and odd. This cheque was presented before the Yes Bank, Ashok Marg Branch, C-Scheme, Jaipur. This cheque also could not be honoured due to insufficient fund then legal notice was sent to the petitioner for payment of the amount and on failure, the impugned complaint petition was filed.

3. Mr. V.R. Bajwa, learned Senior counsel for the petitioner contends that for payment of the same due amount, first cheque was presented and for dishonour of the same above referred complaint case was filed before the Court at Mumbai. There was no reason or legal authority with the respondent to use the second cheque for realization of the same amount. Learned counsel has relied upon the judgment of the Hon'ble Supreme Court in Lalit Kumar Sharma & Anr. v. State of U.P. & Anr., reported in (2008) 5 SCC 638.

4. Learned counsel for the respondent Mr. Pankaj Gupta contends that since there was clear understanding between the parties in the loan agreement itself that cheques would be used for realization of the due amount by the lender and first cheque presented before the bank had already bounced for insufficient funds, the presentation of the second cheque was not prohibited especially when the due amount was not realized.

In Lalit Kumar Sharma (supra), the cheque presented before the bank for realization of enforceable debt had bounced. Thereafter, a criminal complaint was there under Section 138 of the Negotiable Instruments Act (in short "N.I. Act"). In the criminal complaint, the parties entered into a compromise and in pursuance of the compromise the accused handed over another cheque to the complainant. This cheque also bounced thereafter again a complaint was filed. When the