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2003 DIGILAW 1597 (PNJ)

Bharat Kumar v. Ram Swarath Singh

2003-11-21

S.S.SARON

body2003
JUDGMENT S.S. Saron, J. - This order will dispose of Criminal Revision Nos. 91 and 92 of 2000 as they are between the same parties and contain somewhat identical facts and common questions of law have been raised. 2. The facts are, however, taken from Criminal Revision No. 91 of 2000. 3. The petitioners, who are complainants before the trial Court filed Criminal complaint dated 8.1.1999 under Section 138 of the Negotiable Instruments Act, 1881 (Act - for short), on the allegation that the petitioners (complainants) and the respondents (accused) had entered into a partnership business of contractors under the name and style of M/s R.S. Singh Electricals. The said partnership was dissolved vide dissolution deed dated 1.1.1998 and all the four partners had agreed that the petitioners Bharat Kumar and Sameer Singh to be the outgoing partners and left all the rights in the said firm with the accused persons namely Ram Swarath Singh and Mrs. Sarita Devi on the payment of various sums of money as contained and incorporated in the dissolution deed. It is not necessary to go into the other aspects of the matter as regards the dissolution. However, it may be briefly mentioned that it was agreed that a sum of Rs. 4,17,050/- would be payable as 50% share of Rs. 8,34,100/- for works completed by the firm upto 1.4.1998 and Rs. 1,65,000/- as goodwill of the firm. For the payment of these amounts three cheques were issued by the respondents in favour of the petitioner which were presented and encashed. It was further agreed by the accused persons (respondents) that additional payments on account of sharing of earnest money and security deposit and for the sharing of amounts on works to be allotted for which the tenders had already been submitted, both the complainants (petitioners) shall receive an amount equal to 50% of earnest money and security deposit and also 50% of the amount of works to be allotted for which tenders had already been submitted and had been allotted to the respondents. For this purpose two cheques both dated 31.10.1998 for an amount of Rs. 57,425/- and Rs. 1,032,000/- drawn on Punjab National Bank, Sector 28, Chandigarh were issued by the accused (respondents) in favour of the complainants (petitioners) in accordance with the conditions of the dissolution deed dated 1.1.1998. For this purpose two cheques both dated 31.10.1998 for an amount of Rs. 57,425/- and Rs. 1,032,000/- drawn on Punjab National Bank, Sector 28, Chandigarh were issued by the accused (respondents) in favour of the complainants (petitioners) in accordance with the conditions of the dissolution deed dated 1.1.1998. These cheques were presented for encashing from the Bank of the accused (respondents), however, the same were not honoured on 31.0.1998 on the ground of "payment stopped by drawer." According to the complainants (petitioners) the same were again presented for encashment but were dishonoured on 27.11.1998 on the ground of "insufficient funds." The complainants (petitioners) on receipt of information of the cheques not being honoured issued and delivered to the respondents a legal notice dated 8.12.1998 through their counsel, which was received by the latter on 10.12.1998. It is on these allegations that the complaint was filed. The learned Judicial Magistrate in terms of his order dated 8.1.1999 from the oral and documentary evidence led by the complaint, found sufficient grounds to summon the respondents. The respondents on their appearance filed an application dated 14.5.1999 (Annexure P-1) for recalling/rescinding the summoning order passed by the trial Magistrate under Section 138 of the Act and for dropping the proceedings. The learned trial Magistrate, in terms of his impugned order dated 13.9.1999 accepted the said application and dropped the proceedings under Section 138 of the Act. The said order, as already noticed, is assailed in this revision petition. 4. Shri Ashok Devgan, learned counsel appearing for the petitioner has contended that the order of the learned trial Magistrate is erroneous for the reasons that it has relied on the judgment of the Honble Supreme Court in K.K. Sidharathan v. T.P. Parveen Chandran, 1997(1) Recent Criminal Report 158, which has since been over-ruled by the Honble Supreme Court in M/s Modi Cement Ltd. v. Kuchil Kumar Nandi, 1998(1) CLR 598 and, therefore, the impugned order is liable to be set aside and quashed. 5. In response Shri C.S. Pasricha, learned counsel appearing for the respondent does not dispute the fact that the judgment relied upon by the learned trial court has been over-ruled. He, however, contends that the application dated 14.5.1999 (Annexure P-1) contained other grounds also, on the basis of which the proceedings under the Act, in any case, are liable to be dropped. He, however, contends that the application dated 14.5.1999 (Annexure P-1) contained other grounds also, on the basis of which the proceedings under the Act, in any case, are liable to be dropped. He also contends that the entire endeavour of the complainants is to harass the lady Smt. Sarita Devi (respondent No. 2) and the complainants only want to drag her to the Court. 6. I have given my thoughtful consideration to the contentions as urged by the learned counsel for the parties. A reading of the impugned order dated 13.9.1999 passed by the leaned Magistrate shows that the proceedings have been quashed only on the ground that if a drawer of the cheque issued instructions to the bank not to make the payment to the drawee/payee and thereafter the drawee still present the cheque and ultimately the said cheque is dishonoured by the bank, although there are sufficient funds in the account, offence under Section 138 of the Act is not made out. This conclusion was reached at by the learned Magistrate on the basis of the decision in K.K. Sidharathans case (supra). The said decision relied on an earlier decision in the case of Electronic Trade & Technology Development Corporation Ltd. v. Indian Technologies and Engineers (Electronics) (P) Ltd., 1996(1) RCR(Criminal) 592, which was over-ruled in M/s Modi Cements Ltd., 1998(2) RCR(Crl.) 77 (SC) (supra). The latter case has been followed and affirmed in Goaplast (P) Ltd. v. Chico Ursula D Souza and another, (2003) 3 SCC 232 wherein it was held and observed as follows :- "In the present case the issue is very different. The issue is regarding payment of a post-dated cheque being countermanded before the date mentioned on the face of the cheque. For the purpose of considering the issue, it is relevant to see Section 139 of the Act which creates presumption in favour of the holder of a cheque. The said section provides that : "139. 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 of other liability." Thus it has to be presumed that a cheque is issued in discharge of any debt or other liability. 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 of other liability." Thus it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act which is to promote the efficacy of the banking operation and to ensure credibility in business transactions through banks persuades us to take a view that by countermanding payment of post-dated cheque, a party should not be allowed to get away from the penal provisions of Section 138 of the Act. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of ones own wrong. If we hold otherwise, by giving instructions to banks to stop payment of a cheque after issuing the same against a debt or liability, a drawer will easily avoid penal consequence under Section 138. Once a cheque is issued by a drawer, a presumption under Section 139 must follow and merely because the drawer issued notice to the drawee or to the bank for stoppage of payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of the cheque in due course." 7-8. In view of the subsequent judgments in M/s Modi Cements Ltd. (supra) and Goaplast (P) Ltd. (supra), the order dated 13.9.1999 of the learned Magistrate would not stand and the same is, therefore, liable to be set aside and quashed. It is ordered accordingly. 9. In the circumstances, the learned trial Magistrate would proceed with the complaint of the petitioners in accordance with law and shall consider the other grounds raised in the application dated 14.5.1999 (Annexure P-1) and pass a reasoned order in respect of the other grounds raised in the said application. It is ordered accordingly. 9. In the circumstances, the learned trial Magistrate would proceed with the complaint of the petitioners in accordance with law and shall consider the other grounds raised in the application dated 14.5.1999 (Annexure P-1) and pass a reasoned order in respect of the other grounds raised in the said application. The learned trial Magistrate during the proceedings shall also exempt Smt. Sarita Devi (respondent No. 2) from personal appearance and/she is permitted to appear through her counsel. To this the learned counsel for the petitioner has no objection and in case of need she would be present only on the material dates as may be deemed necessary by the learned trial Magistrate. 10. With the above observations, the criminal revision stands allowed and the impugned order dated 13.9.1999 is set aside and quashed. Any observation made herein shall not affect the merits of this case or any other case pending between the parties inter se. Petition allowed.