JUDGMENT :

Manisha Batra, J. (Oral) :

The instant petition has been filed by the petitioners under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (which is pari materia with Section 482 of Cr.P.C.) seeking quashing of Criminal Complaint bearing NACT No. 48056/2022, titled as Indiabulls Housing Finance Ltd. vs. Imagine Residence Pvt. Ltd. and others, filed under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N. I. Act') as pending before the Court of learned Judicial Magistrate First Class, Gurugram as well as for quashing all the proceedings having emanated therefrom including order dated 09.01.2023 (Annexure P-2), whereby the petitioners have been ordered to be summoned as accused.

2. As revealed from the record, the aforesaid complaint has been filed by the respondent-company against the petitioners on the allegations that they had availed loan amounting to Rs. 1,58,00,00,000/- (Rupees one hundred and fifty eight crores) from the respondent by executing an agreement and by agreeing to abide by the repayment schedule. A post dated cheque bearing No. 590912 dated 05.08.2022 for a sum of Rs. 33,51,51,515/- was issued by the petitioners in favour of the respondent with assurance of its being honoured on presentation. Since the said cheque was dishonoured on presentation and as the petitioners failed to pay the amount of cheque even after receipt of statutory notice, therefore, the respondent was compelled to file the aforesaid complaint. The learned Magistrate, after considering the preliminary evidence, passed the impugned order dated 09.01.2023, thereby issuing process against petitioner No. 1-company, petitioner No. 1, who is the Director and authorized signatory of the company as well as petitioner No. 3, who along with petitioner No. 2 is incharge and responsible for the conduct of business of petitioner No 1-company and is looking after its day to day affairs.

3. It is submitted by learned senior counsel for the petitioners that the impugned complaint as well as order dated 09.01.2023, whereby they have been ordered to be summoned to face trial under Section 138 of the N. I. Act are liable to be quashed due to the reason that in fact, no legally enforceable debt existed in favour of the respondent, on the basis of which, it could file the complaint. It is submitted that the loan granted to the petitioners by the respondent had been recalled, vide letter/notice dated 09.03.2020 (Annexure P-5) and on account thereof, there was alteration in the situation of the terms and conditions of the loan, thereby disentitling the respondent to seek repayment of the loan. The respondent had unilaterally invoked 'Material Adverse Change' Clause without specifying any specific event constituting the default. It is further argued that by recalling the loan, vide letter dated 09.03.2020, the respondent predicated upon an intention to usurp the secured properties of petitioner No. 1-company. As a consequence of recall of the loan, the schedule of payment was also deemed to be recalled, which had the consequence of rendering the post dated cheques handed over by the petitioners to the respondent at the time of entering into loan agreement as a nullity and those cheques ceased to have effect of financial instruments qua which the respondent could have any legal entitlement.

4. It is further argued by learned senior counsel for the petitioners that post dated cheques including cheque, which is subject matter of the impugned complaint, had been given by petitioner No. 1 on a specific condition as security for paying the installments in accordance with the schedule of repayment and as soon as the loan was recalled, vide letter dated 09.03.2020, the liability of the company to pay installments in accordance with the schedule ceased to exist and no legally enforceable debt remained in existence, which was required to be paid by the petitioners but by concealing and by taking advantage of this fact that the cheque in question wa