The presumption of cheques being issued for consideration under the NI Act stands unless rebutted, and the IBC does not impede NI Act proceedings.

JUDGMENT :

1. The respondent-complainant has filed the complaint before the Trial court under Section 138 r/w Section 142 of Negotiable Instruments Act (NI Act in short) for the three cheques purportedly issued by the petitioners/accused to the tune of Rs. hundred crore which were bounced when presented before the J and K bank, LD Hospital branch, by the complainant. The complainant has also filed an application for interim compensation under Section 143-A of the said Act before the learned Trial court.

2. The objections were filed to the complaint by the petitioners. The Trial Court after hearing both the parties vide order dated 04.08.2022 directed the petitioners/accused to pay 15% (15 Crore) as interim compensation in favour of the respondent-complainant within 60 days of passing of the order. The petitioners/accused aggrieved by the said order dated 04.08.2022, preferred a revision petition before the Court of learned 1^st Additional Sessions Judge, Srinagar. The said court while deciding the revision petition did not agree with the plea of revision- petitioner for setting aside the order. However, the revisional court slashed down the amount of compensation from 15% to 5% of the cheque amounts. Still aggrieved by the order passed by the revisional court, the petitioners have filed the revision petition under Section 482 Cr.P.C whereby they have challenged both the orders of trial court and revisional court.

3. The grounds on which the present petition has been filed are that the pleas taken in the complaint regarding cheques in question issued by the petitioners are not for the transactions as mentioned in the complaint. The reference is made by the petitioners to the agreements purportedly executed between the parties regarding the sale of different units to the petitioner-company by the respondent herein. Of course, the petitioners have taken the court through the said agreements in order to plead their cause. It is also submitted that the order passed by the Trial court and the revisional court are bad in law as the provisions of Insolvency and Bankruptcy Code (IBC), 2016 do not envisage the utilization of the assets of the company after the moratorium is declared.

4. The prayer made in the instant petition is for setting aside the impugned orders passed by both the courts.

5. The respondent has appeared through counsel and contested the petition.

6. The learned counsel appearing for the petitioners has reiterated the submissions made in the present petition. It is submitted on behalf of the petitioners that the cheques which are the subject matter of the complaint were issued much prior to the period as mentioned in the cheques and which were presented before the concerned Bank for realization. The plea is raised qua the agreements entered into between the parties and the reference is also made of civil proceedings initiated by the complainant. It is further pleaded that both the courts have wrongly interpreted the provisions of N.I Act, and have ignored the defence put forth by the petitioners qua the cheques in questions. The cheques cannot be said to have been issued on account of legal debt. Last, but not the least, the provisions of IBC, 2016 have also been invoked by the petitioners in support of their arguments and submit that the provisions of the ‘Code’ do not envisage that the assets of the company can be utilized due to the pendency of the insolvency proceedings.

7. The learned counsel for the respondent has argued that the present petition cannot be entertained as the petitioners have failed in the Trial court as well as before the revisional court. This Court is not to enter into the factual aspects of the case which have been already dealt with by the courts below. However, it is contended that there is presumption that the cheques were issued for consideration which stand dishonoured by the bank. The defence pleaded by the petitioners before the trial court and the revisional court does not come in the way of