Non-encashment of a cheque for the discharge of a due debt or liability falls within the purview of Section 138 of the Negotiable Instruments Act, 1981.

JUDGMENT :

Sudhir Agarwal, J.

This application under Section 482 Cr.P.C. has been filed by M/s Ganesh Anhydride Ltd. and nine others with a prayer to quash Complaint Case No. 805 of 2004 pending in the Court of Additional Chief Judicial Magistrate, Ghaziabad under Sections 138, 141, 142 of Negotiable Instruments Act, 1981 (hereinafter referred to as "Act, 1981") read with Section 420 IPC and also to set aside summoning order dated 21.03.2002 as also bailable warrant dated 14.12.2004.

2. Facts in brief giving rise to present application are that M/s Morgan Securities and Credit Pvt. Ltd. (hereinafter referred to as "Complainant") has its registered office at 53, Friends Colony, East, New Delhi. It is a Company incorporated under the provisions of Companies Act, 1956 (hereinafter referred to as "Act, 1956"). Similarly, applicant-M/s Ganesh Anhydride Ltd. (hereinafter referred to as "Accused-1") is also a Company registered and incorporated under the provisions of Act, 1956 and Accused-2 to 10 are Managing Director, Directors and other persons, incharge, and responsible for conduct of business of Accused-1. Accused-3, Ramesh Pilani, approached Complainant for financial assistance to meet working capital requirement of Accused-1 by way of Inter Corporate Deposit (hereinafter referred to as "ICD") Facility for an aggregate amount of Rs. 100 lacs, in one or more trenches, with a promise that Accused-1 stood guarantor and repay the money/ amount taken from Complainant as per the agreement executed between parties. Deed of Corporate Guarantee was executed on 07.03.2000 between Accused-1 and Complainant. Complainant-Company placed two ICD each of Rs. 50 lacs dated 14.02.2000 for a period of 91 days and dated 07.03.2000 for a period of 90 days. ICD of Rs. 50 lacks placed on 14.02.2000 was repaid to Complainant but ICD placed on 07.03.2000 due for repayment on 05.06.2000 remained unpaid. Notices and reminders were given by Complainant. As per agreement (Corporate Guarantee Agreement) Accused-1 had undertaken to make payment without delay, demur or protest on first demand of the payment of any or all of the obligations that may become payable at any point of time, if borrower, i.e., Accused-1 refuses, defaults, denied, disputes or fails to pay the lender. After giving credit on account of sale of shares pledged to Complainant, a sum of Rs. 37,95,055/- was due on 31.12.2001 in respect whereof arbitration proceedings were initiated. Accused-1 issued a Cheque No. 713308 for a sum of Rs. 1 crore drawn on State Bank of India, Commercial Branch, Mumbai in favour of Complainant as a further security for realization of loan amount. Notice was given by Complainant on several occasions and lastly on 10.11.2001 to repay outstanding due else Complainant shall be compelled to proceed to present Cheque dated 05.12.2001 given for Rs. 1 crore by Accused-1. Ultimately Complainant presented aforesaid cheque for realization to its Banker but it was dishonoured with Bank's remark "insufficient fund". It is said that this is a violation of provisions of Section 138 of Act, 1981 and consequently complaint was filed. Magistrate taken cognizance of matter, issued summons and this has been challenged before this Court.

3. Sri Vijai Prakash, learned counsel appearing for applicants submitted that there was no legally enforceable debt or liability and, therefore, complaint under Section 138 of Act, 1981 was not maintainable. He placed reliance on Supreme Court's decision in Indus Airways Pvt. Ltd. and others vs. Magnum Aviation Pvt. Ltd. and another, (2014) 12 SCC 539 and Sampelly Satyanarayana Rao vs. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458. He submitted that as per the own case set up by Complainant, outstanding dues upto 31.12.2001 was Rs. 37,95,055/- but Complainant presented the cheque of Rs. 1 crore which was given as a guarantee and larger amount was not a "debt due" or "liability" for discharge, hence even if the cheque was dishonoure