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2009 DIGILAW 2859 (ALL)

FARHAT HUSSAIN SIDDIQUI v. STATE OF U. P.

2009-08-18

RAJESH CHANDRA

body2009
JUDGMENT Hon’ble Rajesh Chandra, J.—This application under Section 482, Cr.P.C. has been moved with a prayer that the proceedings of Complaint Case No. 3360/06 (Gyan Singh Jaiswal v. Farhat Hussain Siddiqui) as well as the summoning order dated 15.6.2009 passed by Additional Chief Judicial Magistrate (Court No. 6), Jhansi may be quashed. 2. Brief facts of the case are that the complainant Gyan Singh Jaiswal filed a complaint under Section 138, N.I. Act in the Court of 1st Additional Chief Judicial Magistrate, Jhansi alleging that accused Farhat Hussain is an agent of Life Insurance Corporation and he used to take money as loan from the complainant Gyan Singh from time to time. In the month of December 2005, a sum of Rs. 2,70,000/- was taken by the accused from the complainant and it was assured that the money will be returned within a month. On that assurance this amount was given to the accused on 4.12.2005. 3. When the accused did not return the money within a month, the complainant asked him for the money. The accused then handed over a cheque dated 10.1.2006 drawn at Vijaya Bank, Jhansi for a sum of Rs. 2,70,000/- from his Account No. 3714. According to complainant, the entire cheque was filled and signed by the accused In the presence of the complainant. The complainant then submitted the cheque in Allahabad Bank, Jhansi on 2.6.2006, which was sent from there to Vijaya Bank, Jhansi for collection of money from the account of the accused. However, since sufficient money was not there in the account, the cheque was dishonoured and was returned to the complainant. The complainant then sent a notice dated 12.6.2006 to the accused through his Advocate, which was served on the accused on 13.6.2006. The accused, however, did not make any payment within 15 days after receipt of the notice and sent an incorrect reply of the notice dated 24.6.2006. The complainant then filed the complaint on 24.7.2006. 4. The Magistrate recorded the statement of the complainant under Section 200, Cr.P.C. and thereafter summoned the accused for the offence under Section 138, N.I. Act, vide order dated 15.6.2009 passed in Complaint Case No. 3360/06 which has been challenged by this application. 5. Learned counsel for the applicant argued that a premature complaint has been filed. 4. The Magistrate recorded the statement of the complainant under Section 200, Cr.P.C. and thereafter summoned the accused for the offence under Section 138, N.I. Act, vide order dated 15.6.2009 passed in Complaint Case No. 3360/06 which has been challenged by this application. 5. Learned counsel for the applicant argued that a premature complaint has been filed. His contention is that the applicant is entitled to make the payment within one month after the service of the notice. However, the contention is not correct in view of Section 138 (c), N.I. Act which lays down that the payment of the cheque amount shall be made by the accused within 15 days of the receipt of the said notice. 6. Since the notice was received by the accused on 13.6.2006, he ought to have made the payment by 28.6.2006. As the accused did not make the payment, the complainant was entitled to file the complaint within next one month from the date on which the cause of action arose under clause (c) of the proviso to Section 138 as has been provided in Section 142(b) of the N.I. Act. Thus the complaint could have been filed by the complainant up to 28.7.2006. The complaint, however, was filed on 24.7.2006. Thus, the complaint has been filed within time and the Magistrate has not committed any illegality in summoning the accused for the offence under Section 138 of the N.I. Act. 7. The next contention of the learned counsel for the applicant that the cheque has not been issued in the name of the complainant and since it is a self drawn cheque, the same cannot be said to have been given to the complainant for the discharge of any debt or liability. 8. 7. The next contention of the learned counsel for the applicant that the cheque has not been issued in the name of the complainant and since it is a self drawn cheque, the same cannot be said to have been given to the complainant for the discharge of any debt or liability. 8. To appreciate the said contention it is proper to refer Section 138 of the N.I. Act which runs as under : “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 for 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 provision 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) 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 fifteen 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.” 9. A perusal of the said provisions leaves no doubt that it is not an ingredient of Section 138 of the N.I. Act that the cheque should be drawn in the name of another person. What is required is that the cheque should be drawn by the person from the account maintained by him. It can be drawn in his own name as self or in the name of third person and it should be for the discharge of debt or liability. Section 9 of the N.I. Act defines “Holder in due course” and reads as under : “Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if (payable to order), before the amount mentioned in it became payable and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title." 10. It is clear from the above that a holder in due course is a person who is in possession of an instrument even though it is payable to bearer. In the present case a perusal of the cheque indicates that it was addressed as payable to self and that the word ‘bearer’ has not been deleted. Since Gyan Singh is in possession of the bearer cheque he is obviously the holder of the cheque in due course. The opposite party No. 2 Gyan Singh being in possession of the cheque presented the same before the bank but the cheque was dishonoured. In these circumstances Gyan Singh was entitled to initiate action against the present applicant. 11. It is settled legal position that at the stage of passing order under Section 204, Cr.P.C. only the prima facie case has to be seen and not whether the evidence adduced will result in conviction of the accused persons. 12. In the case of Nirmaljit Singh Hoon v. State of West Bengal and another, 1973 (10) ACC 181 (SC) while considering the scheme of Sections 200, 203, Cr.P.C., it has been held by the Hon’ble Apex Court that Section 203, Cr.P.C. does not say that a regular trial for adjudging the truth or otherwise of the accusations made against the accused should take place at that stage. Section 203 consists of two parts. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials, there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. 13. In the case of Chandra Deo Singh v. Prakash Chandra Bose, 1964 (1) SCR 639 the Hon’ble Apex Court held that at the stage of enquiry under Section 202, Cr.P.C., the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. Again in the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, 1976 (1) ACC 225 (SC) while considering the scope of enquiry under Section 202, Cr.P.C., the Hon’ble Apex Court has held that it is extremely limited only to the ascertainment of truth or falsehood of the allegations made in the complaint (a) on the basis of the materials placed by the complainant before the Court; (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (c) for deciding the question purely from the point of view of complainant without at all adverting to any defence that the accused may have. In that case, it has been held by way of illustration that the order of Magistrate issuing process can be quashed where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused. 14. In the case of S.W. Palanitkar and others v. State of Bihar and another, 2002 (44) ACC 168 (SC) the Hon’ble Apex Court has held that at the stage of passing order under Section 203, Cr.P.C. searching sufficient ground to convict is not necessary. 15. In view of the above I am satisfied that the Magistrate has not committed any illegality in passing the summoning order dated 15.6.2009 and there is no ground to quash the proceedings of complaint case No. 3360 of 2006 or to quash the summoning order dated 15.6.2009. 16. The application under Section 482, Cr.P.C. is therefore, dismissed. 17. 15. In view of the above I am satisfied that the Magistrate has not committed any illegality in passing the summoning order dated 15.6.2009 and there is no ground to quash the proceedings of complaint case No. 3360 of 2006 or to quash the summoning order dated 15.6.2009. 16. The application under Section 482, Cr.P.C. is therefore, dismissed. 17. If, however, the applicant surrenders before the Court concerned within three weeks from today his bail application shall be disposed of in the light of the judgment passed by 7 Judges Bench of this Court in Amarawati and another v. State of U.P., 2005 Cri LJ 755 as approved by the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P., 2009(3) ADJ 322 (SC). ————