CASE TITTLE: MRS SANTOSH RANI DHARIWAL V STATE (GOVT. OF NCT OF DELHI) AND ANR
CASE NO: CRL.M.C. 6017/2023 & CRL.M.A. 22555/2023
ORDER ON: 28.03.2024
QUORUM: . JUSTICE MANOJ KUMAR OHRI
FACTS OF THE CASE:
The present petition is filed under Section 482 Cr.P.C.wherein, the petitioner seeks setting aside of the summoning order passed by learned Court, Delhi,
The facts leading the present appeal in question is that respondent No.2/complainant is an NBFC duly incorporated under the Companies Act, 1956 and also registered with RBI, and is engaged in the business of loan and finance. It is alleged that husband of the petitioner namely Mr. Sandeep Singh Deswal approached the complainant and requested a loan of Rs.1 crore for his business purposes. A loan agreement was executed between the petitioner’s husband and the complainant. The loan document was accompanied by a Term Sheet, which was signed not only by Mr. Sandeep Singh Deswal but also by the petitioner. The petitioner also executed a surety bond , vide which she undertook to pay the loan amount with interest, costs and expenses to the complainant, in case the loan is not paid by Mr. Sandeep Singh Deswal. The petitioner had also given the original papers i.e. allotment letter, buyer and seller agreement and receipt in respect of her office bearing No.207, 2nd Floor, Palm Square, Gurgaon, Haryana as collateral security. Upon default in repayment of loan by petitioner’s husband, petitioner’s husband issued a cheque bearing No.000013 drawn on HDFC Bank, for an amount of Rs.60 lacs towards part-payment of the dues. When the said cheque was presented for encashment, the same was returned dishonoured with the remark ‘funds insufficient’ A legal demand notice was issued to petitioner’s husband and upon his failure to repay the cheque amount, respondent No.2 filed a case under Section 138 NI Act against Mr. Sandeep Singh Deswal vide CC No.3667/2018. In the meantime, the petitioner had taken back all the original documents in respect of the property that were given as collateral surety/mortgage, on the pretext of getting the property registered and also executed a receipt acknowledging receipt of the said documents. The petitioner had also handed over a separate cheque bearing number 000001 drawn on HDFC Bank, Vatika Atrium, A-Block Golf Course Road, Sector-53, Gurgaon-122002 for Rs.25 lacs towards part payment of the loan taken by her husband. The said cheque, when presented for encashment, was dishonoured with the remarks ‘funds insufficient’ vide return memo The complainant issued a demand notice and upon her failure to repay the cheque amount, the subject criminal complaint came to be filed, wherein the petitioner has been summoned by the impugned order.hence this petition,
LEGAL PROVISIONS:
under Section 138 NI Act, talks about returning of a cheque which unpaid constitutes an offence only if such return is due to want of funds.
CONTENTIONS OF APPELLEANT:
The appellant through their counsel Mr.R.S.Kundu, submits that the cheque issued by the petitioner was not towards discharge of any legal liability but was issued as surety/security as she stood as a guarantor of the loan taken by her husband. Counsel also contented that even otherwise a reading of the loan document would show that the petitioner only stood as a guarantor and that the loan was taken by her husband in the name of his firm, which is a sole proprietorship firm. Counsel further contented that Thus, without impleading her husband, proceedings would not lie against the petitioner. The petition is contested by the complainant/respondent No.2, who submits that petitioner’s liability stands covered under the expression ‘other liability’ appearing in Section 138 of the NI Act and in this regard, he has relied upon the decision of the Supreme Court, Pertinently, the principal borrower i.e. the proprietorship firm of petitioner’s husband had issued a cheque of Rs.60 lacs towards part payment of its liability and upon dishonour of the said cheque, proceedings under section 138 NI Act were initiated vide CC No.3667/2018, which are pending consideration. Statedly, the petitioner has not been arrayed as an accused in the said proceedings. The counsel further contented that the present proceedings are with respect to a cheque of Rs.25 lacs issued by the petitioner, in the capacity of guarantor of the loan taken by her husband. The subject cheque has been issued by the petitioner from her individual account and she is the signatory of the same. Indeed, in terms of the decision in Pooja Ravinder Devidasani (Supra), the personal guarantor, who in that case was a former Managing Director, cannot be proceeded against under Section 141 NI Act and made vicariously liable unless specific averments are made leading to reasonable inference that the person was in-charge or involved in day-to-day affairs of the accused company. However,the counsel further contented that in case of a separate cheque issued by the guarantor, upon dishonour of the same, the presumption under Section 139 NI Act comes into the picture. No doubt, the said presumption is rebuttable, however, the same can only be rebutted by leading evidence and due consideration of the said evidence, which can only be done during trial. Pertinently, the counsel contented that fact relating to loan taken by the petitioner’s husband as well as the issuance of the cheque by the petitioner are not disputed. The petitioner has indeed accepted that the said cheque was issued by her as security for the loan taken by her husband. The factum of dishonour of the cheque issued by the petitioner as well as the receipt of legal notice consequent to such dishonour are also not in dispute in the present proceedings. The only contention that has been raised before this Court is that since the petitioner had only stood as guarantor and it was her husband who had actually taken the loan, proceedings against her could not be continued in the absence of her husband being impleaded as a party.
COURTS ANALYSIS AND JUDGEMENT:
The court From the above extract,observed that the expression ‘other liability’ encompasses all distinct forms of liabilities including but not limited to the liability undertaken as a guarantor. Once the same is clarified, and considering the fact that the subject cheque is admitted to have been issued by the petitioner as well as the fact that the legal notice was received by the petitioner and that she had failed to make due payment, the ingredients of the offence under Section 138 NI Act are fulfilled. Upon consideration of the same, the presumption under Section 139 NI Act comes into action and while the same is rebuttable, it requires leading and appreciation of evidence, which can only be undertaken during trial. This Court, in its jurisdiction under Section 482 Cr.P.C., cannot undertake a detailed appreciation of the evidence and only has to form a prima facie view. In view of the discussion hereinabove, the Court is of the considered opinion that the petitioner has failed to make out a prima facie case thereby seeking setting aside of the summoning order dated 18.09.2018. Consequently, the court dismissed the petition.
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