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2006 DIGILAW 1643 (RAJ)

Deepak Gaur v. Adarsh Developers

2006-05-12

GOPAL KRISHAN VYAS

body2006
Judgment Gopal Krishan Vyas, J.-By way of filing the present petition under Section 482, CrPC, the petitioners have challenged the order dated 02.01.2003 passed by Chief Judicial Magistrate, Sirohi in Criminal Case No. 4/2003 so also the order dated 210.2005 passed by Chief Judicial Magistrate, Sirohi, dismissing the misc. application filed by the petitioners for dropping the criminal proceedings pending against them in Criminal Case No. 4/2003. Further, it is prayed that the criminal proceedings pending against the petitioner may ordered to be dropped. .2. Before dealing with the controversy involved in the present case, it is worthwhile to mention here that earlier the petitioners preferred a misc. petition being S.B. Criminal Misc. Petition No. 306/2003 before this Court wherein the order of cognizance was challenged. The said petition came to be decided by this Court vide order dated 10.11.2003. The operative portion of the said order dated 10.11.2003 reads as follows:- ."Consequently, the misc. petition is dismissed without prejudice to the rights and contentions of the parties in case raised before the trial Court. It will be open for the petitioner to file an appropriate application for dropping the proceedings. If an appropriate application is filed, the same shall be disposed of by the trial Court in accordance with law." 3. In pursuance of the aforesaid order dated 10.11.2003 passed by this Court, the petitioners moved appropriate application before the learned trial Court but the learned trial Court rejected the application while following the Judgment rendered by Honble Supreme Court in case of Adalat Prasad vs. Rooplal Jindal, reported in 2004 CrLR (SC) 800, wherein the Honble Supreme Court has held that there is no provision for recalling/reviewing the order passed by trial Court and it was further observed that the order of cognizance can be challenged by way of filing petition under Section 482, CrPC. 4. In the present petition, while challenging the order of cognizance as well as the order dated 210.2005 passed upon the application moved by the petitioners for dropping criminal proceedings pending against them, it is contended by the learned Counsel for the petitioners that a complaint was filed under Section 138 of Negotiable Instruments Act (hereinafter "the Act" only) by the complainant wherein it was alleged that the petitioners were liable to pay Rs. 3,10,000/-to the complainant as the cost of construction of house, jointly owned by them in Adrash Nagar, Sirohi. 3,10,000/-to the complainant as the cost of construction of house, jointly owned by them in Adrash Nagar, Sirohi. Further, it is contended that in connection with the said outstanding, the Petitioner No. 4 Shakuntala Gaur issued a cheque No. 018903 dated 31.08.2001 for Rs. 70,000/-of State Bank of Bikaner & Jaipur, Sirohi. As per the allegation levelled in the complaint, the said cheque was presented before the Bank for payment on 31.08.2001 and the same was dishonoured. Further, it was alleged that the Petitioner No. 4 issued the disputed cheque for Rs. 70,000/-on behalf of all the petitioners; therefore, all of them are liable to pay the said amount as co-owner of the house. As per the allegations levelled in the complaint, a legal notice was served upon the petitioners on 10.09.2001 by the complainant, asking them to make payment within a period 15 days but the petitioners did not pay the cheque amount and instead of making payment, a reply to the notice based upon wrong facts was given. The said reply was given on 24.09.2001 by the petitioners. Thereafter, the complaint was filed under Section 138 of the Act and on that basis cognizance was taken by the learned trial Court. 5. It is contended by the learned Counsel for the petitioners that a bare perusal of the complaint will go to show that no reasons whatsoever have been mentioned for dishonouring the cheque whereas the Bank has specifically mentioned in the "Cheque Returning Memo" that drawer of the cheque has stopped the payment meaning thereby there was sufficient amount lying in the bank account of the Petitioner No. 4 but due to instruction of drawer to stop the payment the cheque was dishonoured but this fact was not disclosed in the complaint. Further, it is contended by the learned Counsel for the petitioners that while passing the order dated 210.2005 on the application moved by the petitioners in pursuance of the order passed by this Court, the learned trial Court has failed to decide the application judiciously. Thus, the learned trial Court has committed an error while ignoring the facts of the case. Further, the learned trial Court has also failed to appreciate the fact that even in the statement recorded under Section 200, it was not disclosed by the complainant as to why the said cheque was dishonoured. 6. Thus, the learned trial Court has committed an error while ignoring the facts of the case. Further, the learned trial Court has also failed to appreciate the fact that even in the statement recorded under Section 200, it was not disclosed by the complainant as to why the said cheque was dishonoured. 6. It is contended by the learned Counsel for the petitioners that in fact a civil suit was filed against the complainant for recovery of Rs. 2,76,721/-before the District Judge, Sirohi. The recovery of said amount was claimed on the ground that the said amount was paid in excess to the builder for construction of the house and that civil suit is still pending. It is further contended by the learned Counsel for the petitioners that post-dated cheque for 31.08.2001 was given to the complainant on 30.04.2001 under the impression that there is outstanding. Before 31.08.2001, the petitioners sent a notice dated 13.08.2001 that there is no outstanding, therefore, he is not liable to pay any amount and cheque shall not be presented before the Bank. Further, on 24.09.2001 in reply to the notice given by the complainant on 10.09.2001, it was categorically informed by the petitioners that they are not liable to pay any amount and civil suit has been filed against the complainant party. In reply to the notice, entire facts were brought to the notice of the complainant but without disclosing all these facts, the complainant filed the complaint upon which the cognizance was taken by the learned trial Court erroneously. 7. The contention of the learned Counsel for the petitioners is that there was no liability upon the petitioners to pay any amount more so a civil suit for recovery of Rs. 2,76,721/-was filed by the petitioners prior to giving notice by the complainant and it is also very material to mention here that from a bare perusal of the complaint, it is clear that it has nowhere been stated that what was the reasons of dishonour of the cheque by the bank. Whereas bank has categorically informed the complainant that drawer has instructed for stop payment and sufficient amount was lying in the bank account of the petitioners but due to outstanding of the complainant and filing of the civil suit by the petitioners against the complainant, the payment was stopped. Whereas bank has categorically informed the complainant that drawer has instructed for stop payment and sufficient amount was lying in the bank account of the petitioners but due to outstanding of the complainant and filing of the civil suit by the petitioners against the complainant, the payment was stopped. The complainant has concealed the material facts from the Honble Court while filing the complaint before the learned trial Court and implicated all the petitioners in a false case. Therefore, the learned trial Court was under an obligation to see entire facts of the case but erroneously cognizance was taken against all the petitioners. 8. Without prejudice to the above grounds, learned Counsel for the petitioners has prayed that admittedly the cheque has been issued by the Petitioner No. 4, then how other petitioners can be held responsible for the same and, for Petitioner No. 4 also, it is contended that the said cheque was issued under threat when the possession was given by the petitioners and before the date of post dated cheque, a notice was sent to the complainant apprising him that there is no outstanding and cheque shall not be presented before the bank for payment. 9. It is also contended by the learned Counsel for the petitioners that learned trial Court has committed error while not deciding the objections on merits though this Court has passed an order in earlier S.B. Criminal Misc. Petition No. 306/2003 on 10.11.2003. Therefore, the order impugned dated 210.2005 is also required to be quashed and criminal proceedings are required to be dropped. .10. Per contra, learned Counsel for the Non-petitioner No. 1 contended that admittedly it is not disputed by the petitioners that cheque was issued in favour of the non-petitioner and author of the cheque was Petitioner No. 4 and because of the reasons that the house in which the construction was made by the Non-petitioner No. 1 is jointly owned by the petitioners, therefore, all the petitioners are liable to pay the said amount though the cheque has been issued by the Petitioner No. 4. It is also contended that admittedly the cheque is dishonoured and according to the provisions of Section 138 of the Act, when there is no dispute with regard to the issuance of the cheque and cheque is dishonoured for whatever reasons then proceedings under Section 138 of the Act can be initiated and in the present case also, the cheque was issued by the Petitioner No. 4 on behalf of all the petitioners in connection with the payment of construction cost of the house owned by all the petitioners. It is further contended that it was not necessary for the non-petitioner to disclose the reasons of dishonouring the cheque by the bank. It was sufficient enough to mention in the complaint that cheque was dishonoured which was issued by the petitioners. Further, it is submitted that though in the earlier petition filed by the petitioners, this Honble Court has passed an order that the petitioners my file an application before the learned trial Court for dropping the criminal proceedings pending against them. In pursuance of the said order, an application was filed by the petitioners but after passing of the Judgment dated 10.11.2003, the Honble Supreme Court in case of Adalat Prasad (Supra), held that once the cognizance has been taken and summons have been issued, the trial Court cannot recall its own order. Thus, the learned trial Court while following the directions given by Honble Supreme Court in the aforesaid case, has rightly rejected the application filed by the petitioners. 11. I have heard learned Counsel for the parties and perused the record of the case. 12. It is true that in the earlier petition under Section 482, CrPC filed by the petitioners, this Court has passed an order dated 10.11.2003 and granted liberty to the petitioners for filing appropriate application for dropping the proceedings and the learned trial Court was directed to decide such application in accordance with the law. 13. I have perused the order passed by the learned trial Court given on the application filed by the petitioners in pursuance of the order passed by this Court on 10.11.2003. The trial Court while deciding the said application filed by the petitioners followed the Judgment rendered by Honble Supreme Court in case of Adalat Prasad (Supra), wherein it has been held that there is no power of review left with the trial Court. The trial Court while deciding the said application filed by the petitioners followed the Judgment rendered by Honble Supreme Court in case of Adalat Prasad (Supra), wherein it has been held that there is no power of review left with the trial Court. Therefore, it is obvious that the learned trial Court while following the Judgment rendered by Honble Supreme Court has rejected the application of the petitioners without consideration on merits. However, in the Judgment rendered in case of Adalat Prasad (Supra), the Honble Supreme Court has clearly held that the said order can be challenged under Section 482, CrPC. 14. It is not disputed before me that the cheque was issued by the Petitioner No. 4. I have perused the complaint filed by the non-petitioner wherein there is no mention as to how all the petitioners are co-owner of the house in which the work of construction was done by the non-petitioner. Without any documentary evidence with regard to the title of the house, it cannot be said that all the four petitioners are owner of the house and are liable to pay the amount of construction cost. Admittedly, the cheque was issued by the Petitioner No. 4, therefore, even if the case of the complainant is accepted, the proceedings under Section 138 of the Act can be initiated only against the Petitioner No. 4. 15. Be that as it may. There is something more to say that the complainant has not mentioned any reason whatsoever in the complaint with regard to dishonour of the cheque. Whereas the bank has categorically informed the complainant that due to instruction of stop payment by the drawer, the cheque was dishonoured. When it was within the knowledge of the complainant that cheque has been dishonoured due to stop payment by the petitioners then it was his duty to mention in the complaint that the cheque was dishonoured on the ground of stop payment by the petitioners but this fact was not even mentioned in the complaint. Likewise, it is admitted in Para No. 4 of the complaint that in pursuance of the notice sent by the complainant on 10.09.2001, a reply was given by the petitioners and reasons for instructions to the bank for stop payment were clearly mentioned but in the complaint, the complainant has deliberately concealed the reasons for dishonour of the cheque were not mentioned in the complainant. I have perused the copy of the reply presented before me. In reply, it was categorically mentioned that there is no outstanding and civil suit has been filed against the complainant for recovery of Rs. 2,73,440/-, i.e., the excess amount which has already been paid to the complainant by the petitioners. In reply, it was mentioned that in all Rs. 8,15,000/-has been paid for cost of construction of house and there is due of the petitioners and for the recovery of the same, a suit has been filed prior to issuance of the notice by the complainant under Section 138 of the Act. All these facts were not mentioned in the complainant. 16. Likewise, learned Counsel for the petitioners have invited the attention of this Court towards Section 138 of the Act, which 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 extend to one year, 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) "........................" .(b) "........................" .(c) "........................" 17. From a bare perusal of language of above section, it is clear that 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 demed to have committed an offence and shall without prejudice to any other provision of this Act, be punishment with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. 18. In the present case, first of all, it is disputed by the learned Counsel for the petitioners that there was no liability upon them to pay any amount, more so, a civil suit was also filed by the petitioners prior to issuance of notice by the complainant under Section 138 of the Act. Secondly, the reason for dishonouring the cheque by the Bank was due to instructions by the drawer of the cheque to stop the payment, therefore, it was the duty of the complainant to apprise the Court entire facts of the case and Court was required to apply its mind but all these facts were concealed in the complaint by the complainant. 19. The Honble Supreme Court recently in case of SMS Pharmaceuticals Ltd. vs. Neeta Bhalla & Ors., reported in 2005 (2) WLC (SC) Criminal 490 has held that where the allegations in the complaint or charge-sheet do not constitute any offence, the complaint is required to be dismissed. The Honble Supreme Court while deciding the above mentioned case held that it is the duty of the complainant to disclose entire facts before the Court and trial Court is required to apply its mind. Here, in the present case, it is obvious that in the complaint so many important facts were concealed and fact of filing civil suit was also concealed by the complainant. Here, in the present case, it is obvious that in the complaint so many important facts were concealed and fact of filing civil suit was also concealed by the complainant. The complainant was under an obligation to disclose all the facts of filing of the civil suit and reasons disclosed in the reply to the notice before the trial Court but the complainant has not even filed the reply given by the petitioners in pursuance of the notice dated 10.09.2001. However, a bald statement has been made in the complaint that the reply was given on wrong facts. 20. Looking to the provisions of Section 138 of the Act and the Judgment rendered by Honble Supreme Court in case of SMS Pharmaceuticals Ltd. (Supra), I am of the opinion that the cognizance taken against the Petitioner Nos. 1 to 3 is totally erroneous because they are not the author of the cheque and there is no evidence or any other documents on record to establish the liability towards payment of cheque of Petitioner Nos. 1 to 3, upon which it can be said that all the four petitioners were responsible for dishonour of the cheque. Therefore, the cognizance taken against the Petitioner Nos. 1 to 3 vide order dated 02.01.2003 is set aside because they are not the author of the cheque. 21. As far as Petitioner No. 4 is concerned, it is true that reasons for dishonour of cheque were not disclosed by the complainant but in reply to the notice, it was categorically mentioned by the petitioners that while issuing the post dated cheque, Petitioner No. 4 categorically informed that cheque shall not be presented before the Bank for payment because a suit has already been filed for recovery of the amount already due against the complainant. This does not, however, detract in any manner from the fact on record that Petitioner No. 4 is signatory of the cheque which has been dishonoured. The culpable liability under Section 138 of the Negotiable Instruments Act, 1881 rests indisputably upon the shoulders of the signatory of the cheque that has been dishonoured. Since Petitioners Nos. This does not, however, detract in any manner from the fact on record that Petitioner No. 4 is signatory of the cheque which has been dishonoured. The culpable liability under Section 138 of the Negotiable Instruments Act, 1881 rests indisputably upon the shoulders of the signatory of the cheque that has been dishonoured. Since Petitioners Nos. 1 to 3, in the case, cannot be said to be responsible for payment to the complainant and, admitting the liability of dues, Petitioner No 4 has drawn the cheque it is established on record that Petitioner No. 4 has failed to honour the liability resting upon her for payment of dues to the complainant once the payment of cheque was not made within the stipulated time after notice to the Petitioner No. 4. In SMS Pharmaceuticals Ltd. (Supra), the Supreme Court while dealing with the scope of Section 141 of the Act in relation to the liability incurred for prosecution under the provisions of the Act held that a liability under Section 141 of the Act, fastened vicariously on a person must be indicated with necessary averments before the person can be subjected to criminal process. A clear case should be spelled out in the complaint against the person sought to be made liable. Mere allegation of liability is not sufficient to satisfy the requirement. It must be pointed out specifically how a person is actively responsible vicariously for payment of a cheque, which is alleged to have been dishonoured. The Supreme Court however, made it clear that the signatory of a cheque which is dishonoured is clearly responsible for incriminating act and will be covered under Sub-section (2) of Section 141 of the Act. 22. As a result of the foregoing, this petition deserves to be partly accepted. Accordingly, the impugned order of cognizance dated 011.2003 qua Petitioner Nos. 1 to 3 is set aside. The trial Court shall proceed with the case in accordance with the law against the Petitioner No. 4.