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Allahabad High Court · body

2000 DIGILAW 468 (ALL)

SHALIESH KUMAR AGRAWAL v. STATE OF U P

2000-03-27

B.K.RATHI

body2000
B. K. RATHI, J. ( 1 ) BOTH these petitions involved the same question of fact and law. The petitioner in both cases in same person and opposite party in Petition No. 3542 of 1997 is the wife of the opposite party in Petition No. 847 of 1998. Therefore both these petitions are being disposed of by this common judgment. ( 2 ) I have heard Mr. K. K. Arora, learned Counsel for the applicant and Shri P. L. Naithani, learned Counsel for the opposite party No. 2 and perused the record. ( 3 ) TWO complaints under Section 138, N. I. Act were filed against the judgement one each by opposite party of these petitions. It is admitted that the applicant Shailesh Kumar Agrawal and the opposite party, Dinesh Kumar agrawal are real brothers and opposite party, Smt. Sandhya Agrawal is the wife of Dinesh Kumar Agrawal. The two brothers Shalish Kumar Agrawal and Dinesh Kumar Agrawal were partners in the firm M/s. Chhotiwala bhojnalaya, Swarg Ashram, Pauri Garhwal Thereafter a family settlement on 15. 2. 1995 had taken place and the firm M/s. Chhotiwala was allotted to the share of Dinesh Kumar Agrawal. According to the agreement some movables were allotted and in respect of the same it was agreed that the applicant will get Rs. 5,75,000/- in four installments and that amount was paid by Dinesh Kumar Agrawal. That in first week of April, 1995 the application offered to return Rs. 2,20,000/- to Dinesh Kumar Agrawal in respect of certain other settlement. That accordingly, the applicant issued two cheques, first for Rs. l Lac in favour of Smt. Sandhya Agrawal and another cheque for rs. 1,20,000/- in favour of Dinesh Kumar Agrawal. Both the cheques are dated 6. 4. 1995. Both the cheques were presented to the Bank and they were returned with the endorsement of insufficient funds vide memo of Bank dated 3. 9. 1996. That, thereafter Dinesh Kumar Agrawal and Sandhya Agrawal sent separate notices dated 10. 10. 1995 through registered post to pay the amount. The said amount was not paid within fifteen days of the service of notices and therefore two complaints were filed against the applicants, one by each of them under Section 138, N. I. Act. The applicant has made a request for quashing the proceedings of both these complaints. 10. 1995 through registered post to pay the amount. The said amount was not paid within fifteen days of the service of notices and therefore two complaints were filed against the applicants, one by each of them under Section 138, N. I. Act. The applicant has made a request for quashing the proceedings of both these complaints. ( 4 ) THE first contention of the learned Counsel for the applicant, which is in regard to the Petition No. 3542 of 1997 only, is that family settlement took place between two brothers, the applicant and his brother. Dinesh kumar Agrawal. That amount was payable to Dinesh Kumar Agrawal. That thereafter there was no liability of payment to Smt. Sandhya Agrawal, wife of Dinesh Kumar Agrawal. That, therefore, the cheque in favour of Smt. Sandhya Agrawal was not for the "discharge of any debt of liability against the applicant. " That therefore no offence under Section 138, N. I. Act is made out. That therefore a necessary ingredient of Section 138, N. I. Act that the cheque should be in discharge of the debt or liability does not exist in this case. No offence under Section 138, N. I. Act is made out. ( 5 ) I have considered the argument. In my opinion, it is without merit the reason is that Section 138, N. I. Act reads as follows : "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. " therefore there is presumption in favour of the complainant that the cheque is regarding the discharge of the liability and it is for the applicant to prove the contrary and to rebut his presumption. This can be rebutted by the applicant by evidence only. Therefore at this stage there is no ground to quash the complaint. The first contention of the learned Counsel for the applicant cannot be accepted. In Maruti Udyog Limited v. Narendra,1999 (1) SCC113. the apex Court has held that there is presumption is favour of holder of cheque under Section 139, N. I. Act and the accused should prove otherwise. ( 6 ) THE next contention of the learned Counsel for the applicant a that cheques dated 6. 4. In Maruti Udyog Limited v. Narendra,1999 (1) SCC113. the apex Court has held that there is presumption is favour of holder of cheque under Section 139, N. I. Act and the accused should prove otherwise. ( 6 ) THE next contention of the learned Counsel for the applicant a that cheques dated 6. 4. 1995 were once presented and they were dishonoured for insufficient funds prior to 30. 9. 1995. They were again presented and dishonoured on 30. 9. 1995 and thereafter the required notice proviso (b) to section 138, N. I. Act was given. That no notice was given after dishonour of the cheques earlier and, therefore, the claim is time-barred and no offence under Section 138, N. I. Act is made out. ( 7 ) THE complete reply to this, argument has been given by Honble supreme Court in the case of Sadanandan Bhadran v. Madhavan Sunil kumar. 1998 ACC 574 It. was held that Section 138, N. I. Act does not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. That cause of action arises only when the notice is served. On each presentation of the cheque and its dishonour only a fresh right arises and not a fresh cause of action. Once th e notice was given under clause (b) of Section 138, N. I. Act, cause of action arises and thereafter the payee forfeits his right to further present the cheque. It was observed, "that now, the question is how the apparently conflicting provisions of the Act, one enabling the payee lo repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too with in one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonour a fresh right and not cause of action accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under Clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. He may, therefore, without taking pre-emptory action in exercise of his such right under Clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But once he gives a notice under Clause (b) of Section 138 he forfeits such right in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. " ( 8 ) IN view of this decision of the Apex Court the argument of the learned Counsel cannot be accepted. ( 9 ) THE last contention of the learned Counsel for the applicant is that the notice sent by the complaint is not in respect of the amount of the cheque only. In the notice besides the amount of cheques, Rs,550/- has also been demanded as cost of the each notice. It is, therefore, contended that the notice is not valid. Learned Counsel in support of the argument has also again referred to Clause (b) of Section 138, N. I. Act which provides that the payee or holder in due course of the cheque makes a demand for the payment of the "said amount" (emphasis given) of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid. It is, therefore, contended that "said amount" (emphasis given) means that the notice should be in respect of the demand of the amount of the cheque only and if it is exceeding the amount of the cheque, the notice is illegal an invalid. Learned Counsel in support of the argument has referred to the decision of this Court in Criminal Misc. Application No. 183 of 1994 decided on 5. 4. 1999. In that case the cheque was for Rs. 20,000/ -. The notice was issued for rs. 2,26,473/ -. It was held that the notice in invalid. The facts of the case were different. As against this learned Counsel for the opposite party has referred to the decision of Apex Court in the case of Suman Sethi v. Ajay kumar Churiwal. 2000 (1) JT 493 (SC ). 20,000/ -. The notice was issued for rs. 2,26,473/ -. It was held that the notice in invalid. The facts of the case were different. As against this learned Counsel for the opposite party has referred to the decision of Apex Court in the case of Suman Sethi v. Ajay kumar Churiwal. 2000 (1) JT 493 (SC ). It was held that: "where in addition to said amount there is also a claim by way of interest, cost etc. Whether the notice is bad would depend on the language of the notice. If in a notice while giving up breakup of the claim the cheque amount, interest, damages, etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. " in view of the decision, the contention of the learned Counsel for the applicant cannot be accepted as in the present case the amount of the cheque has been clearly mentioned in the notice. It may also de added that after the service of the notice no amount was tendered by the applicant, in case he would have tendered by the applicant, the amount of the cheque, it might have been argued that no offence under Section 138, N. I. Act is made out. The applicant cannot avoid the payment after the service of the notice on the ground that the cost of the notice was also demanded. ( 10 ) NO other points have been pressed in these petitions. Both the petitioners, therefore, fail and hereby dismissed. Petitinns dismissed. .