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Madhya Pradesh High Court · body

2010 DIGILAW 124 (MP)

Ashok Kumar v. Suresh

2010-01-29

N.K.MODY

body2010
ORDER 1. This order shall also govern the disposal of CrRNo. 302/09, as both the petitions are arising out of one case and also in both the cases parties are one and the same. 2. In Cr.R. No. 303/09 petition has been filed by the petitioner Ashok Jain, against the order dated 15.10.08 passed by Sessions Judge, indore in Cr.R. No. 247/08 whereby the order dated 21.2.08 passed by Special Judge Magistrate, Indore in Criminal Case No. 2274/02 whereby charge was framed against the respondent for an offence alleged to have been committed under section 138 of he Negotiable Instruments Act (which shall be referred to hereinafter as an 'Act'), was set aside. 3. In Cr.R.No. 302/09 also the revision petition was filed before the learned Sessions Court against the same order and the revision petition was registered in the Sessions Court, Indore as Cr. R. No. 327/08. 4. Short facts of the case are that the complaint was filed by the petitioner on 29.6.01 under section 138 of the Act against the respondents alleging that the respondents are friends and are helping each other in business. It was alleged that respondent No.2 is Proprietor of M/s. Velco India Chemicals. It was alleged in the complaint that the loan was given by the petitioner to the respondents. It was alleged that for the purpose of repayment respondent No.2 issued the cheques dated 12.11.2000 for a sum of Rs. 21,050/-, dated 21.11.2000 for a sum of Rs. 21,000/- and dated 28.11.2000 for a sum of Rs. 25,000/- was alleged that all the three cheques were signed by respondent No.2 and was in the name of respondent No. 1. It was alleged that the cheques were submitted by the petitioner for collection, but the same were returned vide memorandum dated 9.5.01 with an endorsement to the effect "stop payment". It was alleged that the notice was issued by the petitioner on 16.5.01, which was duly served on respondent No.2 and the notice sent to respondent No.1 was returned with endorsement that 'intimation left'. It was alleged that inspite of notice the cheque amount was not paid, hence respondents have committed an offence which is punishable under section 138 of the Act. It was prayed that after taking cognizance, respondents be convicted. 5. It was alleged that inspite of notice the cheque amount was not paid, hence respondents have committed an offence which is punishable under section 138 of the Act. It was prayed that after taking cognizance, respondents be convicted. 5. After taking cognizance of the offence, learned trial Court framed the charge against the respondents for an offence punishable under section 138 of the Act, against which both the respondents filed separate revision petition, which was decided by the impugned order, whereby revision petitions filed by the respondents were allowed and the complaint filed by the petitioner was dismissed and the respondents were discharged, against which present petition has been filed. 6. Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the cheques in dispute were bearer and the petitioner was the holder of the cheques in due course. It is submitted that in case the offence is committed by any Company, every person of the Company who is in-charge of and is responsible to the Company in the conduct of the business, is guilty of the offence. It is submitted that the word 'Company' is defined under section 141 of the Act. It is submitted that as per Sub-clause (a) of Explanation of section 141 of the Act 'Company' means and body corporate and includes a firm or other association of individuals. It is submitted that since the cheques were bearer and the petitioner was the holder of the cheques in due course, therefore, learned revisiomil Court committed error in discharging the respondents. 7. Learned counsel for the petitioner placed reliance on a decision in the matter of Babulal v. Kewal Chand, 2008 (I) MPWN 84 = 2008 (1) DCR 537 wherein this Court had a occasion to deal with the word 'bearer' and it was held that the cheque is an instrument in writing signed by maker and is a bill of exchange. It was further held that the relevant part of cheque goes to show that the cheque was bearer also as the words 'or bearer' were not cut by the petitioner. Further reliance is placed on a decision in the matter of Michael Kuruvilla v. Joseph 1. It was further held that the relevant part of cheque goes to show that the cheque was bearer also as the words 'or bearer' were not cut by the petitioner. Further reliance is placed on a decision in the matter of Michael Kuruvilla v. Joseph 1. Kondody, 1999 Bank J. 674 wherein Kerala High Court has held that the cheque retained its negotiable character and one who came in possession of it would be 'holder in due course' of the cheque. Reliance is also placed on a decision in the matter of Mahesh Goyal v. S.K. Sharma, 1997 CrLJ 2868 wherein Punjab and Haryana High Court in a case where cheque though drawn self, held that complainant is holder in due course. Further reliance is placed on a decision in the matter of Punjab & Sindh Bank v. Vinkar Sahakari Bank Ltd. (2001) 7 SCC 721 wherein a crossed cheque was assigned by the payee to his bank, it was held that a rebuttable presumption arose that the bank was a holder in due course and could, even in the absence of an endorsement on the cheque in accordance with section 50, maintain a complaint for dishonour of the cheque. 8. On the strength of aforesaid decisions, learned counsel for the petitioner submits that the learned Revisional Court committed error in dismissing the complaint. It is submitted that the petition filed by the petitioner be allowed and the impugned order passed by the learned Revisional Court be set aside and the case be remanded back to the learned trial Court to decide the same on merits. 9. Learned counsel for respondent No.1 submits that respondent No.1 has not issued any cheque. It is submitted that the alleged cheques do not bear the signature of respondent No. 1. It is submitted that there is nothing on record on the basis of which it can be said that respondent No.1 was associated with the business of M/s. Velco India Chemicals, therefore, learned Revisional Court has rightly discharged the respondent No.1. Learned counsel placed reliance on a decision in the matter of Santosh Kumar v. Amit Sirvaniya, 2005 (2) Apradh Nirnay Journal, 296 wherein accused was neither the account holder, nor the cheque was drawn by him, in the circumstances this Court held that the accused cannot be prosecuted under section 138 of the Act. Learned counsel placed reliance on a decision in the matter of Santosh Kumar v. Amit Sirvaniya, 2005 (2) Apradh Nirnay Journal, 296 wherein accused was neither the account holder, nor the cheque was drawn by him, in the circumstances this Court held that the accused cannot be prosecuted under section 138 of the Act. It is submitted that in the facts and circumstances of the case, petition filed by the petitioner against respondent No. 1 deserves to be dismissed. 10. Learned counsel for respondent No.2 submits that in fact there were four cheques, which were issued by the respondent No.2 in favour of respondent No.1. It is submitted that all the cheques were lost by respondent No.1 and complaint was lodged by the respondent No.1 at 'Police Station. Tukoganj, Indore on 4.11.2000 and immediately stop payment was instructed by the respondent No.2 to its Banker. It is submitted that the present prosecution filed by the petitioner is relating to three cheques. It is submitted that apart from this there was one more cheque of Rs. 16,100/- dated 30.10.2000 for which separate complaint was filed by the petitioner under section 138 of the Act and vide judgment dated 11.8.05 the said complaint was dismissed. It is submitted that no appeal or revision was filed by the petitioner against the dismissal of the complaint, therefore, that judgment whereby the complaint was dismissed attained finality. It is submitted that in the facts and circumstances of the case, petition filed by the petitioner has no merits and deserves to be dismissed. 11. From perusal of the record it is evident that the alleged cheques were issued by respondent No.2 in favour of respondent No.1. While allowing the revision petition, learned revisional Court has observed that the cheques in dispute are not bearer, but are in favour of respondent No.1. It was further observed that there is no endorsement of respondent No.1 that the cheques amount be paid to the petitioner. 12. From perusal of the record it is evident that the three cheques which are in dispute was dated 12.11.2000, 21.11.2000 and 28.11.2000, while the cheque which was in dispute in Criminal Case No. 1891/04 was dated 30.10.2000. In the present case the cheques were returned to the petitioner on 9.5.01, while in Criminal Case No. 1891/04 the cheque was returned to the petitioner on 24.4.01. In the present case the cheques were returned to the petitioner on 9.5.01, while in Criminal Case No. 1891/04 the cheque was returned to the petitioner on 24.4.01. There is no sufficient justification in the complaint that while the cheques were dated 12.11.2000,21.11.2000 and 28.11.2000, why the same were put for collection on 9.5.01. Apart from that in, the complaint it is no where stated that when the loan was given by the petitioner and what was the amount of loan. It is also not stated that to whom the loan was given. No explanation was given by the petitioner in the complaint that why the petitioner accepted the cheques, which were in the name of respondent No.2. It is true that the petitioner was the holder of the cheques. It is also true that the cheques were bearer, but in all the three cheques name of respondent No.1 was mentioned. - 13. Keeping in view all the facts and circumstances of the case and also keeping in view the cheque dated 30.10.2000 for which criminal case was filed which was numbered as CrC No. 1891/04 was dismissed vide order dated 11.8.05, against which no appeal was filed, this Court is of the view that the learned Revisional Court committed no error in dismissing the complaint filed by the petitioner. 14. In view of this, petition filed by the petitioner has no merits and is hereby dismissed. A copy of the order be placed in the record of CrRNo. 302/09.