ANIL METRE Vs. STATE

JUDGEMENT

(1.) These petitions under section 482 Cr.P.C. are filed assailing the summoning order dated 29 th Apirl, 2008 in complaints under section 138 read with section 141 of Negotiable Instrument Act (for short the Act?).

(2.) The respondent/complainant company had filed the aforesaid complaints, through its authorized person Mr. Kailash Nath Jasoria on the averments that they had jointly given loan of Rs.20,00,000/- to the petitioner on the terms and conditions as per the agreement executed between them on 16 th November, 2001. The loan was given for a period of 12 months which was to be repaid along with interest @ 24% per annum. The petitioner/accused executed demand promissory note jointly in favour of the company and Mr. Jasoria. In discharge of the aforesaid liability towards the payment of the outstanding dues, the petitioner/accused issued two cheques bearing No. 294664 and 294663 of Rs.7,50,000/- and Rs.12,50,000/- respectively, both dated 12.09.2004. Since the cheques on presentation were dishonoured on account of insufficient fund , the respondents issued legal notice dated 23 rd September, 2004 to the petitioner. The petitioner having failed to make payment of the cheques amounts, complaints were filed for prosecution. The MM vide the impugned order summoned the accused/petitioner and the said order is assailed by these petitions.

(3.) Based on the averments in the petitions, the submissions of the learned counsel for the petitioner are that in lieu of the loan of Rs.20,00,000/- taken by the petitioner from the respondent/complaint, he had pledged shares of his company Spectrum Magazines Ltd. of the face value of Rs.25,00,000/- as security as per the tripartite agreement executed between the parties on 16 th November, 2001. It was submitted that since the petitioner was borrowing the money, he also, as desired, gave the aforesaid cheques as security in addition to several Post Dated Cheques of the period from 19.11.2001 to 01.03.2002 towards periodical payment of interest on the loan amount. It was submitted that the petitioner having pledged and handed over the shares, as above, to the respondent/ complainant, its liability towards the loan amount stood discharged and there being no liability, the respondents were not entitled to encash the cheques given to them as security. It was submitted that when the petitioners company went into liquidation, the respondent/complainant took over his company and has become its Director. It was submitted that as per Clause (5) of the agreement the respondent/complainant had full right to sell, dispose off, transfer to its nominees or realise the said securities in discharge of the loan amount. It was also submitted that both these cheques were dated 16.11.2001, but the respondent /complainant altered and modified the dates by changing the dates from 16.11.2001 to 12.09.2004.