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2010 DIGILAW 575 (PAT)

Akhouri Gopal v. State Of Bihar

2010-04-01

NAVIN SINHA

body2010
JUDGEMENT 1. Heard learned counsel for the petitioner, for the State and for the opposite party no. 2. 2. The petitioner who is stated to be a dealer in Automobiles is aggrieved by the order of cognizance dated 26.2.2009 under Sections 406 and 420 of the I.P.C. and Section 138 of the Negotiable Instruments Act in Complaint Case No. 279 of 2009 preferred by the opposite party no. 2 pending before the Judicial Magistrate, Bhagalpur. 3. The allegations are that the opposite party no. 2, purchased a truck from the petitioner. It was short of one tyre and rim for which the petitioner gave him a due payment of Rs. 13,500/- alongwith interest of Rs. 1,800/- totaling Rs. 14,300/- by an account payee cheque duly encashed. The petitioner had allegedly issued another cheque of Rs. 15,000/- by way of cash discount as per business norms on the purchase. The cheque was deposited in the bank on 15.4.2008 and every time the opposite party no. 2 enquired into the amount being credited, each time the information was in the negative from the staff of the Bank. Ultimately, a legal notice was sent to the Bank which informed the insufficiency of the funds in the account for honouring the check. A legal notice was then sent to the petitioner on 3.10.2008. Instead of paying the amount the petitioner demanded return of the cheque as issued inadvertently. 4. Learned counsel for the petitioner submits that there is no pleading in the complaint with regard to the fulfilment of the statutory conditions under Section 138 of the N.I. Act by stating that on what date the bank intimated insufficiency of funds so as to bring the notice dated 3.12.2008 within the ambit of Section 138(b) of the N.I. Act which mandates a notice within 30 days of the dishonour. There is no pleading on what date this notice if given was received to invoke Section 138(c) of the N.I. Act of the liability of the petitioner to repay within 15 days. There is no pleading on what date this notice if given was received to invoke Section 138(c) of the N.I. Act of the liability of the petitioner to repay within 15 days. He relies upon a judgment reported in 2003 Criminal Law Journal 520 holding to the following effect at Paragraph 5 of the judgment which reads as follows: "In other words, according to the counsel, one of the ingredients of S. 138 of the Act is to the effect that after the notice had been issued to the accused within 15 days from the intimation received by the banker about the dishonour, the complainant should ask the accused to call upon him and pay the amount within 15 days, enabling the accused to pay the amount. If the same has not been complied with, then he has to file the complaint within one month from thereon. Therefore, it is mandatory on the part of the complainant to say in clear terms whether the accused had paid the amount, or gave any other explanation withholding the payment or any other excuses. But in the present complaint there is absolutely no whisper at all in relation to that effect." 5. He next submitted that from the allegations in the complaint itself it is manifest that no complaint has been filed after the alleged first return of the cheque for reasons of insufficiency of funds but only after repeated presentation. Reliance is placed upon (2010)2 SCC 329 (Tameeshwar Vaishnav V/s. Ramvishal Gupta) more particularly Paragraph-16 the relevant extract reads as follows: "On careful scrutiny of the decision in S.L. Constructions case, it would appear that the facts on the basis of which the said decision was rendered, were different from a case of mere presentation and dishonour of the cheque after issuance of notice under the proviso to Section 138 of the Act. While the decision in Sadanandan Bhadran case, (1998)6 SCC 514 clearly spells out that a cheque may be presented several times within the period of its validity, the cause of action for a complaint under Section 138 of the Act arises but once, with the issuance of notice after dishonour of the cheque and the receipt thereof by the drawer. The same view has been reiterated in Prem Chand Vijay Kumar case, (2005)4 SCC 417 . The same view has been reiterated in Prem Chand Vijay Kumar case, (2005)4 SCC 417 . The only distinguishing feature of the decision in S.L. Constructions case, (2009)1 SCC 500 is that of the three notices issued, the first two never reached the addressee. It is only after the third notice was received that the cause of action arose for filing the complaint. In effect, the cause of action for filing the complaint in the said case did not arise with the issuance of the first two notices since the same were never received by the addressee." 6. Learned counsel for the opposite party no. 2 submitted from (2007)4 SCC 70 (S.M.S. Pharmaceuticals Ltd. V/s. Neeta Bhalla & Anr.) all that was required to be shown that a cheque had been issued, the same was presented and dishonoured and a notice served. 7. Paragraph 19 of the very same judgment in item IV reads as follows: "(iv) a notice in terms of the said provision was served on the person sought to be made liable." 8. That itself mandates strict compliance with the statutory requirements of Section 138 of the N.I. Act. The N.I. Act was promulgated raising a presumption against the accused. This Court has therefore no hesitation in holding that before such a presumption shall arise the present complaint shall necessarily have to make strict adherence to the statutory provision which is mandatory. In absence of compliance of such mandatory provisions, a prosecution under Section 138 of the N.I. Act raising a presumption against the accused shall not apply. 9. The allegations are for non-return of a cash discount as per norms of business. The person dealing in automobiles to increase his sales agrees to forego a part of the profit by passing on the benefit to the purchaser. This profit was the property of the dealer. The purchaser has no right to it till it is not actually paid. It does not constitute the property of the purchaser. 10. The purchaser cannot insist as a matter of right on a cash discount which is prerogative or privilege of the automobile dealer. 11. This profit was the property of the dealer. The purchaser has no right to it till it is not actually paid. It does not constitute the property of the purchaser. 10. The purchaser cannot insist as a matter of right on a cash discount which is prerogative or privilege of the automobile dealer. 11. Section 405 of the I.P.C. makes it an offence of criminal breach of trust if a person is entrusted with any property and dishonestly, misappropriates or converts to his own use that property or disposes that property of another in violation of any direction of law prescribing the mode for discharge. This Court has already held that the cheque for cash discount being claimed by the opposite party no. 2 was not the property of the opposite party no. 2 but that of the automobile dealer who may or may not give the cash discount. If it is not the property of the opposite party no. 2 the question of the petitioner misappropriating or converting to his own use what was essentially his own property to invoke Section 406 of the I.P.C. does not arise. Section 420 IPC makes it an offence if a person is deceived to deliver any property dishonestly. The ownership of the property has to be in the person deceived. There has been no delivery of any property belonging to the opposite party no. 2 by dishonest inducement to the petitioner. If the cash discount was a privilege being given by the petitioner from his own properties to the opposite party no. 2, the question of his dishonestly inducing opposite party no. 2 to deliver any property to him does not arise. The question of the petitioner retaining the cash amount, his own property, and thereby deceiving the opposite party no. 2 to invoke an offence of cheating does not arise. 12. This Court is therefore satisfied that in the facts and circumstances of the present case, on the allegations as read on the face of it, no offence is made out to subject the petitioner to the rigours of a criminal trial either under the provisions of the Indian Penal Code or the Negotiable Instruments Act. 13. 12. This Court is therefore satisfied that in the facts and circumstances of the present case, on the allegations as read on the face of it, no offence is made out to subject the petitioner to the rigours of a criminal trial either under the provisions of the Indian Penal Code or the Negotiable Instruments Act. 13. The entire prosecution of the petitioner in so far as the order dated 26.2.2009 passed in Complaint Case No. 279/2000 including the order of cognizance pending before the Judicial Magistrate, Bhagalpur is hereby set aside. 14. The application stands allowed.