PREM CHAND GOYAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By this revision petition, a challenge is made to the order dated 29.11.2008 convicting petitioner for offence under Section 138 of Negotiable Instruments Act (for short M.I. Act). The petitioner has been sentenced with two years simple imprisonment and compensation of Rs.1,10,00,00 (Rs. One Crore & Ten Lac) in view of provisions of Section 357(3) of Cr.P.C. The petitioner preferred an appeal, however, it was also dismissed.

(2.) Learned counsel for the petitioner submits that as per Section 138 of N.I. Act, the amount of cheque should be towards legal enforceable debt or other liabilities. Referring to part No.2 of the complaint, it is submitted that amount of Rs.1,08,26.405 was shown due towards sale consideration. The document P5 ledger account does not conform amount of Rs.l.08.26.405 to be due. In view of above, basic ingredients of Section 138 of N.I. Act is not made out. This is more so when, the case has checkered history, inasmuch as, one company, namely. Pamwi Tissues Ltd. (for short Company) was facing litigation before the BFR and winding up petition in Delhi High Court. An agreement was executed between the parties and the Company, which was owned even by Anil Kumar Khetan, who was the Managing Director at the relevant time. The agreement was not disclosing due amount of Rs.1,08,26,405, accordingly the complainant failed to prove legally enforceable debt or liabilities, which is required as per explanation to Section 138 of N.I. Act. In view of the above, the complaint should have been dismissed.

(3.) It is further stated that even issue of jurisdiction was not taken up by the Coutts below. Three cheques in question were issued at Chandigarh Bank, thus mere presentation of those cheques in Alwar Bank of the complainant, jurisdiction was not to the Court at Alwar.