Chetu India Pvt. Ltd v. Gulshanlal Srivastava) under section

Heard Shri Abhishek Gupta, learned counsel for the applicant and Shri Rajesh Kumar Gupta, learned A.G.A. for the State.

2. The instant application under section 528 BNSS has been filed seeking quashing of the entire proceedings of Complaint Case No. 86 of 2024 (M/ Chetu India Pvt. Ltd. Vs. Gulshanlal Srivastava) under section 138 N.I. Act police station Sector 63, NOIDA District Gautam Budh Nagar pending in the Court of Addl. Court No. 1 District Gautam Budh Nagar as well as the summoning order dated 29.7.2024.

3. Learned counsel for the applicant submits that the cheque in question was signed and given by the applicant herein to the opposite party no. 2/Company as a security cheque in terms of an agreement/bond executed by the applicant in favour of the Company for securing his employment in the Company. Learned counsel for the applicant further 2 submits that since it was a security cheque issued by the applicant, there was no definite determined liability against the applicant herein, therefore, no offence under section 138 of N.I. Act is made out against the applicant. Therefore, he seeks quashing of the entire proceedings of the above case as well as the summoning order.

4. Learned counsel for the applicant has relied upon Clause 14 of the said Agreement/Bond executed by the applicant at the time of his engagement/employment with the opposite party no. 2, according to which in case of any dispute, the same shall be referred to the sole Arbitrator appointed by the complainant. Therefore, learned counsel submits that in view of the specific clause of Arbitration it was not open for the opposite party no. 2 to straight away filed a complaint case under section 138 N.I. Act.

5. So far as the arbitration clause is concerned, in view of the categorical averments made in the complaint that the cheque in question has been issued by the applicant herein not as a security cheque but after after leaving the employment with the Company. Therefore, as per the averment made in the complaint the cheque was voluntary issued by the applicant herein in favour of the Company after leaving the job. Thus, there was no occasion for the Company to invoke the arbitration clause.

6. It is further submitted by the learned counsel for the applicant that in the instant case the cheque was dishonoured for the reason “payment stopped by drawer”. The aforesaid content is not covered within the meaning of section 138 of the N.I. Act, therefore, no offence under section 138 of the N.I. Act is made out against the applicant herein.

7. The Apex Court in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi (1998) 3 SCC 249 has held that dishonour of cheque for the reasons: referred to the drawer; instruction for stoppage of payment and stamped; and exceeds arrangements, all those incidents are covered within 3 the meaning of section 138 of the N.I. Act and the same should be treated as dishonour of cheque. Thus there is no force in the aforesaid argument advanced by the learned counsel for the applicant.

8. From perusal of the terms and condition of the engagement of the applicant as trainee with the opposite party no 2 it is apparent that if the applicant voluntarily leaves the service of the Company for the reasons what so ever within the commitment period, he is required to pay the Company Rs. 3,00,000/-. It is admitted case of the applicant herein that he left the employment/training with the opposite party no. 2 within a period of three months whereas as per the Bond he was bound to continue with the Company for four years. Therefore, in the considered opinion of this Court, as per the terms and condition of the engagement of the applicant herein with the opposite party no. 2 dated 12.6.2023 which was signed by the applicant, there was clear violation on the part of the applicant herein. Thus the applicant was bound by the terms and condition of the said Bond executed by him and it is the admitted case of the applicant herein that the cheque in question was issued by the applicant herein and was signed by him to secure the payment to the opposite party no. 2 in case the applicant leaves the employment/training with the Company within the aforesaid period of four years. Therefore, from the aforesaid prima-facie a case is made out against the applicant herein.

9. From the record of the case also it is apparent that as per the case in the complaint in terms of the said Agreement/Bond executed by the applicant, the applicant has issued the cheque in question in the month of November, 2023 in discharge of his liability in terms of the said Bond bearing cheque no. 00002 dated 3.11.2023 amounting Rs.3,00,000/- drawn on Kotak Mahindra Bank. The said cheque was presented by the opposite party for encashment which was dishonoured with the endorsement payment stopped by the drawer. Thereupon the opposite 4 party issued notice on 23.11.2023 to the applicant and the applicant herein failed to comply with the said notice. Thereupon the the instant complaint case has been lodged by the opposite party no. 2 on 20.12.2023 well within time.

10. In view of the presumption under section 139 of the N.I. Act itself it is presumed that the drawer of the cheque has issued the cheque in favour of the holder of the cheque against a legal liability. However, the said presumption is a rebuttable presumption. Thus from the facts of the case, prima-facie case is made out against the applicant and this court finds no illegality in the impugned summoning order dated 29.7.2024 whereby the applicant has been summoned under section 138 of N.I. Act.

11. For the aforesaid reasons, the instant applicant lacks merit and is accordingly dismissed. Order dated: 31.7.2025 o.k. (Anish Kumar Gupta, J)

Heard Shri Abhishek Gupta, learned counsel for the applicant and Shri Rajesh Kumar Gupta, learned A.G.A. for the State.

2. The instant application under section 528 BNSS has been filed seeking quashing of the entire proceedings of Complaint Case No. 86 of 2024 (M/ Chetu India Pvt. Ltd. Vs. Gulshanlal Srivastava) under section 138 N.I. Act police station Sector 63, NOIDA District Gautam Budh Nagar pending in the Court of Addl. Court No. 1 District Gautam Budh Nagar as well as the summoning order dated 29.7.2024.

3. Learned counsel for the applicant submits that the cheque in question was signed and given by the applicant herein to the opposite party no. 2/Company as a security cheque in terms of an agreement/bond executed by the applicant in favour of the Company for securing his employment in the Company. Learned counsel for the applicant further 2 submits that since it was a security cheque issued by the applicant, there was no definite determined liability against the applicant herein, therefore, no offence under section 138 of N.I. Act is made out against the applicant. Therefore, he seeks quashing of the entire proceedings of the above case as well as the summoning order.

4. Learned counsel for the applicant has relied upon Clause 14 of the said Agreement/Bond executed by the applicant at the time of his engagement/employment with the opposite party no. 2, according to which in case of any dispute, the same shall be referred to the sole Arbitrator appointed by the complainant. Therefore, learned counsel submits that in view of the specific clause of Arbitration it was not open for the opposite party no. 2 to straight away filed a complaint case under section 138 N.I. Act.

5. So far as the arbitration clause is concerned, in view of the categorical averments made in the complaint that the cheque in question has been issued by the applicant herein not as a security cheque but after after leaving the employment with the Company. Therefore, as per the averment made in the complaint the cheque was voluntary issued by the applicant herein in favour of the Company after leaving the job. Thus, there was no occasion for the Company to invoke the arbitration clause.

6. It is further submitted by the learned counsel for the applicant that in the instant case the cheque was dishonoured for the reason “payment stopped by drawer”. The aforesaid content is not covered within the meaning of section 138 of the N.I. Act, therefore, no offence under section 138 of the N.I. Act is made out against the applicant herein.

7. The Apex Court in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi (1998) 3 SCC 249 has held that dishonour of cheque for the reasons: referred to the drawer; instruction for stoppage of payment and stamped; and exceeds arrangements, all those incidents are covered within 3 the meaning of section 138 of the N.I. Act and the same should be treated as dishonour of cheque. Thus there is no force in the aforesaid argument advanced by the learned counsel for the applicant.

8. From perusal of the terms and condition of the engagement of the applicant as trainee with the opposite party no 2 it is apparent that if the applicant voluntarily leaves the service of the Company for the reasons what so ever within the commitment period, he is required to pay the Company Rs. 3,00,000/-. It is admitted case of the applicant herein that he left the employment/training with the opposite party no. 2 within a period of three months whereas as per the Bond he was bound to continue with the Company for four years. Therefore, in the considered opinion of this Court, as per the terms and condition of the engagement of the applicant herein with the opposite party no. 2 dated 12.6.2023 which was signed by the applicant, there was clear violation on the part of the applicant herein. Thus the applicant was bound by the terms and condition of the said Bond executed by him and it is the admitted case of the applicant herein that the cheque in question was issued by the applicant herein and was signed by him to secure the payment to the opposite party no. 2 in case the applicant leaves the employment/training with the Company within the aforesaid period of four years. Therefore, from the aforesaid prima-facie a case is made out against the applicant herein.

9. From the record of the case also it is apparent that as per the case in the complaint in terms of the said Agreement/Bond executed by the applicant, the applicant has issued the cheque in question in the month of November, 2023 in discharge of his liability in terms of the said Bond bearing cheque no. 00002 dated 3.11.2023 amounting Rs.3,00,000/- drawn on Kotak Mahindra Bank. The said cheque was presented by the opposite party for encashment which was dishonoured with the endorsement payment stopped by the drawer. Thereupon the opposite 4 party issued notice on 23.11.2023 to the applicant and the applicant herein failed to comply with the said notice. Thereupon the the instant complaint case has been lodged by the opposite party no. 2 on 20.12.2023 well within time.

10. In view of the presumption under section 139 of the N.I. Act itself it is presumed that the drawer of the cheque has issued the cheque in favour of the holder of the cheque against a legal liability. However, the said presumption is a rebuttable presumption. Thus from the facts of the case, prima-facie case is made out against the applicant and this court finds no illegality in the impugned summoning order dated 29.7.2024 whereby the applicant has been summoned under section 138 of N.I. Act.

11. For the aforesaid reasons, the instant applicant lacks merit and is accordingly dismissed. Order dated: 31.7.2025 o.k. (Anish Kumar Gupta, J)