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2024 Supreme(Online)(DEL) 16136
HIGH COURT OF DELHI
Amit Mahajan, J
MR. ANIL KULSHRESTHA – Appellant
Versus
M/ S FIITJEE LTD. – Respondent
CRL.M.C. 4294/2024
For the Appellants/Petitioners: Ms. Archana Pathak Dave, Mr. Kumar Prashant, Mr. Avnish Dave, Mr. Parmod Kumar Vishnoi
For the Respondents: None
The issuance of a cheque as security does not exempt the drawer from liability under Section 138 of the NI Act, as the presumption of liability applies unless rebutted with unimpeachable evidence.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Employment Contract - The petitioner challenged the order taking cognizance of a complaint under Section 138 of the NI Act for dishonoured cheques issued as security. The court found sufficient grounds for proceeding against the petitioner, noting that the cheques were issued in relation to a legally enforceable debt. The petitioner argued that the cheques were for security and not for any existing liability, citing unconscionable terms in the service manual. However, the court held that factual defenses should be examined at trial, and the presumption of liability under Section 139 of the NI Act applies. (Paras 1, 7, 10, 15, 24, 30)
(B) Quashing of Proceedings - The court emphasized that inherent powers under Section 482 of the CrPC should be exercised sparingly, especially when factual issues are present. The court determined that the issues raised by the petitioner were factual and could not be resolved at this pre-trial stage. (Paras 25, 29)
(C) Legal Presumption - The court reiterated that the presumption under Section 139 of the NI Act places the burden on the accused to rebut the assumption that the cheque was issued in discharge of a liability. (Paras 22, 23)
| Table of Content |
|---|
| 1. overview of the case and factual background regarding the dishonored cheques. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. petitioner's arguments against the validity of the service contract and cheques. (Para 8 , 9 , 10 , 11 , 12) |
| 3. court's analysis on the nature of the cheques and legal obligations. (Para 14 , 15 , 19 , 20 , 21) |
| 4. court's rationale for not quashing the summons and the significance of trial. (Para 22 , 24 , 25 , 28) |
| 5. final dismissal of the petition. (Para 30) |
JUDGMENT
1. The present petition is filed challenging the order dated 28.08.2023 (hereafter ‘the impugned order’) passed by the learned Metropolitan Magistrate (MM) (NI Act) Digital Court-03, Saket Courts, New Delhi in a complaint filed by the respondent being CC NI Act No. 2369/2023, under Section 138 Of Negotiable Instruments Act, 1881 (‘NI Act’).
2. The learned MM, by the impugned order, has taken cognizance of the complaint filed by the respondent and issued summons against the accused/petitioner.
3. The case of the complainant is that the complainant is a well- known institute that undertakes coaching in the name of FIITJEE Ltd. for students for various competitive exams. The accused/petitioner was appointed as Assistant Professor in the Mathematics Department on 02.06.2022. The terms and conditions of employment of the accused were contained in the ‘Service Contract Manual for the Employees’ which were duly accepted by the accused and he furnished two cheques bearing no. 121010 and 121011 both drawn on Axis Bank, Morena, MP for a sum of ₹2,92,800/- and ₹8,47,200/- respectively in lieu of the said acceptance. It is alleged that in terms of the Service Manual, the complainant had implied authority to fill in the date in the said cheques, in case of any violation of terms of the service manual.
4. The accused failed to report with effect from October, 2022, absented himself from duty, and abandoned the job. The accused thus caused breach of terms and conditions and became liable to pay pre- estimated and pre-determined damages in terms and conditions governing him.
5. The complainant, thereafter, served the accused with a letter dated 07.01.2023 asking him to keep his account funded to honour the cheques in question.
6. According to the complainant, the aforesaid cheques when presented for realisation, were received back dishonoured vide bank return memo dated 17.01.2023 with the remarks ‘Payment Stopper by the Drawer’. Consequentially, a legal notice dated 13.02.2023 was served by the complainant upon the accused calling upon the accused to make the payment towards the cheque amount in question within 15 days of receipt of the notice. According to the complainant, the said notice was duly served upon the accused but no payment against the above dishonoured cheques was made by the accused within the statutory period. Hence the present complaint.
7. The cognizance of offence under Section 138 of the NI Act was taken by the learned MM and the accused was summoned vide the impugned order dated 28.08.2023. The learned MM noted as under:
“After having perused the complainant evidence by way of affidavit and the documents exhibited in it and treating them as evidence, there remains no need for examination of other witness in person or on affidavit; examination of complainant affidavit and exhibited documents is sufficient enquiry in this case. The ingredients of section 138 NI act stands prima-facie satisfied. Therefore, there appears sufficient grounds for proceeding against the accused for offence punishable under section 138 of NI act.
Hence, issue summons against the accused through SHO concerned on filing of PF returnable on or before NDOH. The process server is directed to serve the summons by way of affixation, in case premises found closed or the same could not be served personally or on any adult male member after ascertaining the address from two respectable inhabitants of the locality.”
8. It is the case of the petitioner that the respondent has soug
