Research › Search › Judgment

Andhra High Court · body

2004 DIGILAW 850 (AP)

Jagadish Rai Agarwal v. State Of A. P.

2004-08-16

C.Y.SOMAYAJULU

body2004
C. Y. SOMAYAJULU, J. ( 1 ) ALLEGING that petitioners having agreed to purchase Ac. 17-25 gts. of land in S. Nos. 246 and 247 of Kethireddipalli village, at Rs. 2. 31 lakhs per acre from them and paid an advance of Rs. 5. 02 lakhs through two cheques, and that on 12-4-2003 1st petitioner gave a cheque dated 25-4-2003 for Rs. 35,69,375/- drawn on tamilnadu Mercentile Bank Limited towards the balance amount due and payable as per the agreement, and agreed to take the sale deed within one week from 25-4-2003 at the expense of petitioners, and when the said cheque was presented for payment in andhra Bank, Khairatabad, on 25-4-2003 by the second respondent, it was returned with an endorsement dated 28-5-2003 that payment was countermanded by the drawer and that in spite of a notice dated 5-5-2003 demanding payment of the amount covered by the dishonoured cheque being issued, petitioners failed to make payment of the amount covered by the dishonoured cheque nor sent a reply, respondents 2 to 4 filed a private complaint against the petitioners for an offence under Section 138 of the Negotiable instruments Act, 1881 (the Act), which was taken cognizance of by the learned magistrate as C. C. No. 845 of 2003. This petition is filed to quash the said C. C. ( 2 ) ). The contention of the learned counsel for petitioners is that since the dishonoured cheque was drawn by the first petitioner only and since there is nothing in the complaint to show as to how petitioners 2 to 4 are connected with the first petitioner and the bouncing of the cheque, and since the cheque was not given towards discharge of a legally enforceable debt and since the statutory notice under Section 138,of the act sent to them were received by the petitioners on 8-5-2003, and since the complaint was presented on 26-6-2003, the complaint is clearly barred by time and since respondents 3 and 4 are not either payees or holders in due course of the cheque, the complaint against the petitioners is liable to be quashed. ( 3 ) THE contention of the learned counsel for the respondents 2 to 4 is that since respondents 2 to 4, admittedly, are the joint owners of the property agreed to be sold to the petitioners as admitted by them in their notice dt. ( 3 ) THE contention of the learned counsel for the respondents 2 to 4 is that since respondents 2 to 4, admittedly, are the joint owners of the property agreed to be sold to the petitioners as admitted by them in their notice dt. 30-4-2003, and since admittedly petitioners took possession of the land agreed to be sold by respondents 2 to 4, it is clear that the transaction of sale is almost complete except obtaining of a registered sale deed, and since the amount covered by the dishonoured cheque was given towards the balance sale consideration due and payable to respondents 2 to 4 from the petitioners under the agreement, since the word debt is not defined in the Act, by giving a wider meaning to the word debt , it is to be taken that the dishonoured cheque was given towards a legally enforceable debt i. e. the sale consideration due and payable to respondents 2 to 4 under the agreement of sale entered into by the petitioners. In support of his contention that the word debt has to be given a wider meaning he relied on the following paragraphs in Union of India v. Raman Iron Foundry, AIR 1974 SC 1265 (para 7) :"ft would be profitable in this connection to refer to the concept of a debt , for a sum due is the same thing as a debt due. The classical definition of debt is to be found in webb v. Stenton (1883) 11 QBD 518 where lindley, LJ, said : ". . . . . . . . a debt is a sum of money which is now payable or will become payable in the future by reason of a present obligation. "there must be debitum in praesenti; solvendum may be in praesenti or in futuro that is immaterial. There must be an existing obligation to pay a sum of money now or in future. The following passage from the judgment of the Supreme Court of California in People v. Arguello (1869) 37 Calif. 524, which was approved by this Court in kesoram Industries v. Commr. There must be an existing obligation to pay a sum of money now or in future. The following passage from the judgment of the Supreme Court of California in People v. Arguello (1869) 37 Calif. 524, which was approved by this Court in kesoram Industries v. Commr. of Wealth tax, (1966) 2 SCR 688 : AIR 1966 SC 1370 , clearly brings out the essential characteristics of a debt:"standing alone, the word debt is as applicable to a sum of money which has been promised at a future day as to a sum now due and payable. If we wish to distinguish between the two, we say of the former and it is a debt owing, and of the latter that it is a debt due. "this passage indicates that when there is an obligation to pay a sum of money at a future date, it is a debt owing but when the obligation is to pay a sum of money in praesenti it is a debt due. A sum due would, therefore, mean a sum for which there is an existing obligation to pay in praesenti, or in other words which is presently payable. " his next contention is that in any event since the burden of proof to establish that the dishonoured cheque was not issued for any legally enforceable debt is on the petitioners, in view of the presumption under section 139 of the Act, till disproved by petitioners it has to be taken that the dishonoured cheque was issued towards a legally enforceable debt. It is his contention that since the dishonoured cheque was drawn for and on behalf of Jagdish Rai agarwal HUF, of which the first petitioner is the Kartha, and since petitioners 2 to 4 admittedly are the sons of first petitioner, and since HUF also would be a Company within the meaning of Section 141 of the act, in view of the explanation to that section, petitioners 2 to 4, as members of the huf are also liable for punishment under the Act. It is his contention that since the averments in the complaint clearly disclose that the petitioners received the statutory notice on 12-5-2003, complaint filed on 26-6-2003 is very much within time. It is his contention that since the averments in the complaint clearly disclose that the petitioners received the statutory notice on 12-5-2003, complaint filed on 26-6-2003 is very much within time. It is his contention that the question as to whether the notices were received on 12-5-2003 or not is a matter to be decided by the trial court but not by this Court, because this court while considering a petition under section 482, Cr. P. C. has to presume that all the allegations in the complaint are true. ( 4 ) IN reply the contention of the learned counsel for the petitioners is that the postal acknowledgments produced by respondents 2 to 4 into the Court along with the complaint show that notices were received on 8-5-2003, and in fact in the complaint the date of receipt of notices was originally typed as 8-5-2003 and that respondents 2 to 4 having realized that the complaint would be out of time if date of receipt of notice is shown as 8-5-2003, the date of receipt of notice was altered as 12-5-2003 and contends that from the dates mentioned on the postal acknowledgements under the signatures of petitioners it is clear that the complaint is barred by time. ( 5 ) I find force in the contention of the learned counsel for respondents 2 to 4 that since the word debt used in Section 138 of the Act is not defined in the Act, it should be given a wider meaning and interpretation, and as held in Webb v. Stenton (1833 (11) QBD 518), referred to in Raman Iron foundry case ( AIR 1974 SC 1265 ) (supra) it should be taken to refer to a sum of money which is now payable or will become payable in the future by reason of a present obligation. In view thereof the amount payable by the purchaser to the vendor of a property under an agreement of sale can also be treated as a debt especially when possession of the property agreed to be sold was delivered. In view thereof the amount payable by the purchaser to the vendor of a property under an agreement of sale can also be treated as a debt especially when possession of the property agreed to be sold was delivered. Therefore, I am not able to agree with the contention of the learned counsel for petitioners that the proceedings have to be quashed because there is no legally enforceable debt in this case, moreso because as per Section 139 of the Act, the Court shall presume that the dishonoured cheque was issued in discharge of a debt or other liability , in whole or in part. So, if not towards debt , since the petitioners gave the cheque towards the balance due under the agreement of sale, it is covered other liability mentioned in Section 139 of the Act. Meaning of shall presume as per Section 4 of the Evidence Act, 1872, is that the Court has to presume a fact as proved till it is disproved. So, the burden would be on the petitioners to establish that the dishonoured cheque was not issued in discharge of debt or other liability . It is well known that when the burden of proof is on the accused, question of quashing the complaint does not arise. So, the complaint cannot be quashed on the ground that there is no legally enforceable debt. ( 6 ) THE contention that since respondents 3 and 4 are not the payees or holders in due course of the dishonoured cheque the complaint is liable to be quashed, in my considered opinion, is devoid of any merit, because the fact that persons who are not payees or holders in due course of the cheque also joined the payee of a dishonoured cheque, per se, is not a ground for quashing of the complaint. That apart, as rightly contended by the learned counsel for respondents 2 to 4, the registered notice got issued by the petitioners through their advocate shows that all respondents 2 to 4 are the owners of the property agreed to be sold and that all of them are entitled to the amount covered by the dishonoured cheque. Therefore, the complaint cannot be quashed on the ground that respondents 3 and 4 also joined the 2nd respondent in filing the complaint. Therefore, the complaint cannot be quashed on the ground that respondents 3 and 4 also joined the 2nd respondent in filing the complaint. ( 7 ) THE next contention of the learned counsel for petitioners relates to non-liability of petitioners 2 to 4 for an offence under section 138 of the Act in respect of a cheque drawn by the 1st petitioner. Though ex facie there appears to be force in the contention of the learned counsel for petitioners, on deeper examination, I find force in the contention of the learned counsel for respon- dents 2 to 4 that since the dishonoured cheque was issued by the 1st petitioner as kartha of the HUF, petitioners 2 to 4, being the sons of 1st petitioner and members of huf, in view of the explanation to Section 141 of the Act, like directors of a company, can be made liable for the offence under section 138 of the Act. In the notice got issued by the petitioners through their counsel they clearly admitted that all of them have entered into an agreement to purchase the property of respondents 2 to 4. So, it is clear that they also have a role to play in the sale transaction and so prima facie they also would be liable for the offence under section 138 of the Act, if the cheque issued by the Kartha of the HUF is dishonoured. So, I find no grounds to quash the complaint against petitioners 2 to 4. ( 8 ) THE other contention relates to limitation. Xerox copies of the postal acknowledgments in respect of notice sent by respondents 2 to 4 under Section 138 of the act, filed by the petitioners, are not very clear i. e. the dates on which the addressees received the notices are not clear. No doubt xerox copies of the envelopes in which the petitioners received the notices, produced by the petitioners with this petition, show that petitioners made a note thereon that they were received by them on 8-5-2003. But, that cannot be taken into consideration for deciding this petition. Date of receipt of notice contained on the postal acknowledgments of the statutory notice sent by respondents 2 to 4 can be verified by the trial Court. But, that cannot be taken into consideration for deciding this petition. Date of receipt of notice contained on the postal acknowledgments of the statutory notice sent by respondents 2 to 4 can be verified by the trial Court. Irrespective of the date of receipt of statutory notice mentioned in the complaint, the court also has a duty to verify the date of receipt of notice, if any, contained on the postal acknowledgment, because Court has to be satisfied that the complaint is filed within the period of limitation. Therefore, the petitioners are at liberty to request the trial court to decide the question of limitation before it. ( 9 ) FOR the above reasons, I find no grounds to quash the complaint. As stated above petitioners are at liberty to approach the trial Court for deciding the question of limitation. Petition is disposed of accordingly. Order accordingly.