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2006 DIGILAW 145 (CHH)

PRAVEENKUMARPATHAK v. PRAVEEN JAIN

2006-03-07

S.K.SINHA

body2006
ORDER Shri Sunil Kumar Sinha, J. :- 1. This is a petition filed under Section 482 of the Code of Criminal Procedure against the order dated 17.10.2000 passed by the Magistrate, whereby an application for dismissal of complaint has been rejected by him in a matter under Section 138 of The Negotiable Instruments Act (hereinafter referred to as the Act) and also against the revisional order dated 02.08.2003 passed in Criminal Revision 517/2002 by the 4th Additional Sessions Judge, Durg, (C.G.) confirming the aforesaid order. 2. The brief facts, as stated in the complaint, are that the petitioner had taken a loan of Rs. 1,50,000/- from respondent No. I on 07.01.2000 and for repayment issued a post dated Cheque of 08.03.2000. This Cheque was produced by the respondent No. 1 in the Bank on 02.05.2000. The Cheque was returned with the note that the "Drawer's Signature Differs." On this, the respondent No. 1 served upon the petitioner a demand notice dated 27.05.2000, which was received by the petitioner on 30.05.2000, but even after this the payment was not made and ultimately, the respondent No. I had to file a criminal case under Section 138 of the aforesaid Act on 26.08.2000. 3. After appearance before the trial Magistrate, the petitioner filed an application dated 03.09.2002 for dismissal of the complaint case on the ground that on the basis of complaint as also on the basis of statement of the complainant and other evidence, no case under the provisions of Section 138 of the Act is made out as the amount of cheque was not paid due to difference in drawer's signature and not on the grounds mentioned in Section 138. The learned Magistrate, dismissed this application and made statement of charges under Section 138 of the aforesaid Act. Against the said order, the criminal revision was filed and the revision was also dismissed. The petitioner has challenged the validity of these orders before this Court and has prayed for dismissal of complaint 4. Learned counsel for the petitioner submitted that if a cheque is bounced on account of difference in drawer's signature, no offence under Section 138 of The Negotiable Instruments Act would be made out as the grounds on which the offence would be made out are clearly specified in the aforesaid provisions and no deviation can be made by the Court while interpreting those provisions. 5. 5. On the other hand, learned counsel for the respondents submitted that the High Court of Kama taka has held in the matter of Dinesh Harakchand Sanlda Vs. M/s. Kurian Ltd & others I , that in the event of bounce of cheque on account of difference of drawer's signature with the specimen would also amount to an offence under Section 138 of the aforesaid Act and proceedings drawn by the trial Magistrate cannot be dismissed. 6. I have heard the learned counsel for the parties at length and have also perused the records of both the Courts below. 7. Chapter XVII of The Negotiable Instruments Act, 1881 provides for penalties in case of dishonour of certain cheques for insufficiency of fimds in the accounts. Section 138 reads as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act. be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." 8. A bare perusal of the aforesaid Section would indicate that the offence would be made out if the cheque is returned by the bank unpaid either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount which the account holder had at his credit. The Apex Court, referring to the decision rendered in the matter of Modi Cements Ltd. Vs. Kuchil Kumar Nandi and Electronics Tade & Technology Development Corpn. Ltd. Vs. Indian Technologists & Engineers (Electronics) (P) Ltd. 3 and K.K. Sidharthan Vs. TP. Praveena Chandran4, held in the matter of Vinod Tanna and another Vs. Zaher Siddiqui and others, that in fact, a plain reading of Section 138 of the Act makes it crystal clear that unless the conditions precedent mentioned therein are satisfied, the said penal provision cannot be attracted. In the aforesaid case, the facts were that the cheque was returned due to the reason that the drawer's signature was in-complete and there was no direction from the drawer to stop payment etc. In the aforesaid case, the facts were that the cheque was returned due to the reason that the drawer's signature was in-complete and there was no direction from the drawer to stop payment etc. The Apex Court holding so, quashed the proceedings initiated under Section 13 8 and Section 142 of the aforesaid Act. 9. In the present case also, the facts are in a very narrow campass. Here also there is no direction from the drawer to stop payment and admittedly the cheque has been returned due to difference in drawer's signature which has come in the complaint as well as in the statement of complainant recorded under Section 200 of the Cr.P.C. and is also contained in the memo of the bank submitted as a document before the trial Court. 10. The arguments of learned counsel for the respondents relying on Dinesh Harakchand Sankla s Case' (Supra) are that even when the cheque is dishonoured by the reason of difference in drawer's signature, the Court has to presume by virtue of Section 139 of the Act that the cheque is received by the holder for the discharge, in whole or in part, of any debt or liability and an accused alone can show to the Court that the alterations in signature was not made because of in sufficiency or paucity of funds. In the aforesaid case, learned single Judge of Karnataka High Court held that to overcome the provisions of the aforesaid Act, in circuitous way, the drawer of the cheque may find various ways of getting the cheque bounced or returned with the sole purpose of defeating the encashment of the cheque. It was held by learned single Judge that if the drawer intentionally tampers the cheque or issues the cheque with difference in signature etc., then the cheques will be definitely returned and even after service of statutory notice, if the amount involved in the cheque are not paid by the drawer of the cheque, then his intentions are prima facie clear, to the effect that he would be tampering with the cheques only with an oblique motive. If in such case, the person in whose favour the cheque is issued is not allowed to prosecute the matter under Section 138 of The Negotiable Instruments Act, the very purpose of enactment of the aforesaid Act would be frustrated. If in such case, the person in whose favour the cheque is issued is not allowed to prosecute the matter under Section 138 of The Negotiable Instruments Act, the very purpose of enactment of the aforesaid Act would be frustrated. The Hon'ble High Court held that the drawer of the cheque will have to take abundant precaution while issuing the cheque so that the cheque should be honoured and contractual obligations are fulfilled. In case, if the drawer issues cheque by putting incorrect signature, he will be doing so in circuitous mariner in order to save his skin, only to take advantage of the absence of specific words under Section 138 of The Negotiable Instruments Act and the view taken by Karnataka High Court is that even if the cheque is returned with an endorsement that the drawer's signature found on the cheque differs, as in the said case, an offence under Section 138 of the aforesaid Act would be attracted. With great respect, I declined to subscribe to the aforesaid view taken by the Kamataka High Court. 11. The provisions of Section 138 of The Negotiable Instruments Act are in the nature of penal statutes which provide for penalties for disobedience of the law and are directed against the offenders in relation to their various acts making them liable to imprisonment and fine etc. The statute enforces obedience to the command of the law by punishing offender. Therefore, the general principle of interpretation is that there should be a strict construction. My Lord Justice G.P. Singh after extracting the principles laid down by the Supreme Court as well as by English Courts summed up the principles in the following prepositions : "(1) If the prohibitory words in their known signification cover only some class of persons or some well-defined activity, their import cannot be extended to cover other persons or other activity on considerations of policy or object of the statute. (2) If the prohibitory words are reasonably capable of having a wider as also a narrower meaning and if there is no clear indication in the statute or in its policy or object that the words were used in the wider sense, they would be given the narrower meaning. (2) If the prohibitory words are reasonably capable of having a wider as also a narrower meaning and if there is no clear indication in the statute or in its policy or object that the words were used in the wider sense, they would be given the narrower meaning. (3) When the prohibitory words are equally open to two constructions, one of which covers the subject and the other does not, the benefit of construction will be given to the subject. (4) If the prohibitory words in their known signification bear a wider meaning which also fits in with the object or policy of the statute, the words will receive that wider meaning and their in1port will not be restricted even if in some other context they can bear a narrower meaning. (5) If the literal reading of the prohibitory words produces an unintelligible or non sensual result, but the statute read as a whole gives out its meaning clearly, effect will be given to that meaning by curing a mere defect in phraseology." (Please see the Principles of Statutory Interpretation by Justice G.P. Singh Sixth Edition 1996 at page 540-541) 12. It has also been held by the Apex Court in the matter of Tolaram Vs. State of Bombay that if two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the Court to stretch the meaning of an expression used by the legislature in order to carry out the intention of the legislature. 13. In light of the above Rules of interpretation and also in light of the judgment of the Apex Court in the matter of Vinod Tanna and another (Supra) it would appear that while dealing penal statute it is not permissible for the Courts to stretch the meaning of an expression used by the legislature in order to carry out the intention of the legislature. When the Courts are dealing with the penal statute, in fact, the exact words as are used in the statute and expressions as are given in the same are to be given strict meaning and their presence in the statute should strictly be noticed in their original meaning and sense and to some limit to include the possible meaning according to the intention of the legislature but a new set of thing cannot be added under a particular word or the expression used in the statute to bring a totally foreign event which is neither included nor appears to be intended to be included in the statute. 14. In the present Section 138, a plain reading would make it clear as held by the Apex Court in Vinod Tanna s case that unless the conditions precedent mentioned therein are satisfied, the said penal provision cannot be attracted and an incident like bouncing of cheque for the reason of drawer's signature differs" cannot be brought to the mischief of Section 138 of the Act. The trial Court as well as the revisional Court have completely lost sight of these facts and have not at all taken into notice the aforesaid facts and circumstances. 15. In the result, the orders passed by the trial Court as well as the revisional Court are set aside and the application for dismissal of the complaint filed by the petitioner is allowed and the complaint case filed against him under Section 138 of The Negotiable Instruments Act vide criminal case No. 304/2002 is dismissed. The petition is allowed. Petition Allowed.