SOUTH DELHI MOTORCYCLES Vs. IDFC FIRST BANK LTD.

JUDGEMENT

(1.) By way of present petition filed under Sec. 482 of the Code of Criminal Procedure, 1973, ("Cr.P.C.'), the petitioners seek quashing of summoning order dtd. 20/8/2019 passed by learned Metropolitan Magistrate (NI Act)-01, South-West, Dwarka, Delhi in Complaint Cases bearing numbers 30937/2019and 30938/2019, and quashing of these complaints filed under Sec. 138 of Negotiable Instruments Act, 1881 ("NI Act").

(2.) Brief facts of the case, as per complaints filed by the complainant/respondent, are that the accused/petitioners had applied for grant of INFTA DF Loan facility to the erstwhile Capital First Ltd. and had availed the said loan facility on 31/3/2017 vide loan account/agreement number 19564356, for Rs.1,50,00,000.00 and upon petitioners agreeing upon specific terms and conditions, the erstwhile Capital First Ltd. had disbursed the loan amount. As stated, the petitioners had agreed to repay the loan amount together with interest in equated monthly installments. It is stated that in partial discharge of loan liability, the accused/petitioners had issued two cheques bearing no. 350 for Rs.45,00,000.00 and cheque no. 1122 for Rs.35,00,000.00 both dtd. 14/6/2019 and drawn on HDFC Bank. It is stated that in the meanwhile, Capital First Ltd. had amalgamated into complainant/respondent bank i.e. IDFC First Bank Ltd. Vide order dtd. 12/12/2018 passed by Hon'ble NCLT, Chennai whereby all loans availed by borrowers including loans availed by petitioners were transferred/assigned to complainant/respondent bank. When the complainant i.e. IDFC First Bank Ltd. (erstwhile Capital First Ltd.) had presented the cheques for encashment with its banker, the same had got dishonoured vide return memo dtd. 14/6/2019 for the reasons 'Insufficient Funds'. Thereafter, the complainant had issued legal notice dtd. 10/7/2019 to the petitioners asking them to make the payment of cheque amount, however, they had failed to do so. Accordingly, the complainant/respondent had filed the impugned complaints i.e. complaint cases bearing nos. 30937/2019 and 30938/2019 for dishonour of cheque bearing no. 1122 and 350 respectively. The learned Trial Court had issued summons against petitioners vide order dtd. 20/8/2019.

(3.) Learned counsel for the petitioners argues that the petitioner had earlier entered into an agreement for trade advance facility with the Capital First Ltd. in the year 2013 for an amount of Rs.30,00,000.00 wherein a security cheque bearing no. 1122 had also been handed over by the petitioner, and this loan had been repaid and settled, but the said cheque had remained with the bank.It is stated that thereafter in the year 2017, the petitioner and Capital First Ltd.had entered into a fresh loan agreement wherein other security cheque bearing no. 350 had been handed over to the complainant. It is stated that these undated security cheques had been misused by the complainant at a later stage when there was no existing legally enforceable debt or liability, at the time when chequesin question were drawn or dishonoured. It is also stated that the cheques were payable to Capital First Ltd. and not to the complainant herein, and the cheques have not been endorsed by either the drawer of the cheque or the holder in favour of the complainant, and therefore, the complainant is neither the payee nor the holder in due course. It is, thus, prayed that present petition be allowed and summoning orders and complaint cases be quashed.