VEENA AHUJA Vs. CENTRAL EXCISE

JUDGEMENT

(1.) By way of present petition under Section 482 of the Code of Criminal Procedure Petitioner seeks quashing of complaint case under Section 138/142 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as "the Act") filed by the Respondent, before the Additional Chief Metropolitan Magistrate, New Delhi (ACMM).

(2.) Respondent has alleged in the complaint that Petitioner was proprietor of M/s Ahuja Battery Covers (for short hereinafter referred to as "the firm"). On her instructions, cheque No. 135658 dated 13th May, 2005 for Rs. 20 lakhs drawn on State Bank of India, Mansarover Garden Branch, New Delhi was handed over to the Respondent towards part discharge of Central Excise duty, jointly and severally due from the Petitioner and her firm. On presentation, said cheque was returned dishonored by the banker of the Petitioner for the reasons "exceeds arrangements". Since cheque amount was not paid by the Petitioner within the statutory period as provided under the Act despite receipt of legal notice dated 12th July, 2005, Petitioner had committed offence under Section 138 of the Act.

(3.) Learned Counsel for the Petitioner has contended that the cheque in question had not been handed over to Respondent for discharging, in whole or in part, any debt or other liability. No excise duty was due and payable as on the date of issue of cheque. No demand in that regard was pending as on the said date. In fact, officials of Respondent had conducted a raid at the Petitioner's residence as well as her business premises on 6th May, 2005. They alleged that there were some irregularities in the payment of excise duty by the firm. Without quantifying the amount towards alleged evasion of excise duty, officials of Respondent, by extending threat of arrest, collected two post dated cheques bearing No. 135656 dated 11th May, 2005 for Rs. 15 lakhs and 135658 dated 13th May, 2005 for Rs. 20 lakhs both drawn on State Bank of India, Mansarover Garden Branch, New Delhi. These cheques were taken by the officials of the Respondent without passing any assessment order or quantifying the amount towards the excise duty. As late as on 2nd November, 2005, a show cause -cum-demand notice was issued to the firm to the effect that as to why Central Excise duty amounting to Rs. 46,12,318/- be not demanded under Section 11A(i) of the Central Excise Act, 1944. It was further stated that in case no cause was shown against the action proposed to be taken, within 30 days, the case will be decided on merits without any further reference to them. Excise duty was quantified only on 2nd November, 2005. Thus, it is evident that neither any legally enforceable liability existed as on 6th May, 2005, when cheque in question was taken from the Petitioner, nor it existed when the cheque was presented for payment. As per the learned Counsel no offence under Section 138/142 of the Act is made out against the Petitioner for this reason. Reliance has been placed on K. Narayana Nayak v. M. Shivarama Shetty, 2008 ILR(Kar) 3635.