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2012 DIGILAW 1200 (RAJ)

Ashapura Construction v. State of Rajasthan

2012-05-09

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—The instant misc. petition has been preferred by the petitioner challenging the order dated 18.12.2008 passed by the learned Sessions Judge, Sirohi in Cr. Revision No.45/08, whereby the orders dated 7.5.2007 and 7.8.2007 passed by learned Chief Judicial Magistrate, Sirohi in Cr.Original Case No.189/07, taking cognizance and reading out the accusation of the offence under Section 138 of the Negotiable Instruments Act to the petitioner, have been upheld. 2. The present misc. petition has been preferred by the accused petitioner seeking quashing of the order taking cognizance as well as for complaint filed against the petitioner for the offence under Section 138 of the Negotiable Instruments Act. 3. The respondent No.2 filed a complaint against the petitioner for the aforesaid offence in the Court of learned Chief Judicial Magistrate, Sirohi with the allegation that the petitioner had given a cheque of Rs.22,300/- drawn on the Bank of Rajasthan, Sirohi to the complainant against a legally enforceable debt. It was stated that when the cheque was presented for payment by the complainant in his bank, the same was returned with the endorsement of 'stop payment' on the basis of the instructions given by the petitioner to the bank. The respondent No.2 filed a complaint against the petitioner after giving the due notice as per the Act and the learned Chief Judicial Magistrate, Sirohi, on the basis of the complaint by his order dated 7.5.2007, proceeded to summon the petitioner for the offence under Section 138 of the Act. After the petitioner appeared before the Court below, the accusation of the offence was read out to him on 7.8.2007. These two orders of taking cognizance and read-ing out the accusation to the petitioner, as stated above, have been upheld by the learned Sessions Judge, Sirohi in a criminal revision filed by the petitioner. 4. The orders of the learned Courts below are assailed by the petitioner by way of the instant misc. petition contending therein that in this case, the cheque, which has been bounced, was a cheque issued to be payable to self. It is contended that a case, wherein the cheque has been issued to self, the bouncing thereof cannot lead to the prosecution of the person issuing the same for the offence under Section 138 of the Act. petition contending therein that in this case, the cheque, which has been bounced, was a cheque issued to be payable to self. It is contended that a case, wherein the cheque has been issued to self, the bouncing thereof cannot lead to the prosecution of the person issuing the same for the offence under Section 138 of the Act. It is, therefore, contended in the petition that the proceedings of the complaint under Section 138 of the Negotiable Instruments Act deserve to be quashed. 5. Per contra, the learned counsel for the complainantrespondent No.2 Shri Pradeep Shah submits that in this case, the cheque, in relation to which the complaint was filed, is a bearer cheque and a person, in possession of the bearer cheque, is a holder of the cheque in due course and therefore, it cannot be said that the complainant was not the holder of the cheque in due course so as to absolve the accused from the liability under the N.I.Act. In support of this contention, learned counsel for the complainant, has placed reliance on two decisions of Allahabad High Court and Madhya Pradesh High Court respectively in the cases of Farhat Hussaiin Siddiqui vs. State of U.P. & Anr. reported in AIR 2010 (NOC) (Supp) 550 (ALL.) and Babu Lal Jain vs. Kewalchand Jain reported in 2008(2) ALJ (NOC) 320 (M.P.) (Gwalior Bench). 6. Having considered the arguments advanced at the bar and upon perusal of the cheque, in relation whereto, the complaint has been filed, it is manifest that the cheque bears both the endorsements i.e. 'payable to the self' or the 'bearer'. The word 'bearer' has not been scored off from the cheque. In this view of the matter, the complainant can very well be said to be the bearer as well as 'holder of the cheque in due course. The cheque as alleged in the complaint was issued against a legally enforceable liability. The plea of the accused that since the cheque was not drawn in favour of any specific person, therefore, the mischief of Section 138 of the Act is not attracted, cannot be accepted even for a moment. The cheque as alleged in the complaint was issued against a legally enforceable liability. The plea of the accused that since the cheque was not drawn in favour of any specific person, therefore, the mischief of Section 138 of the Act is not attracted, cannot be accepted even for a moment. If at all, the cheque was not intended to be given to any particular person, then the accused should have scored out the word 'bearer' and then only, it would have been possible to hold that the cheque was in favour of self and not issued to the bearer or the holder of the cheque in due course. 7. In view of the above circumstances, this Court has no hesitation in arriving at a conclusion that the complaint in this case does not suffer from any illegality, so as to quash the proceedings thereof in the exercise of the powers under Section 482 Cr.P.C. 8. The misc. petition as well as the stay application both are, accordingly, rejected.