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Madhya Pradesh High Court · body

2012 DIGILAW 40 (MP)

Amit Dubey v. Arvind Dubey

2012-01-10

N.K.GUPTA

body2012
JUDGMENT : Withthe consent of the learned Counsel for the parties, matter is heard finally. 2.The applicant has challenged the proceedings before the JMFC, Jabalpur relating to Complaint Case No. 8960/2009 underSection 482 of Cr.PC . 3.Facts of the case are that, the respondent has moved a complaint for offencepunishable under Section 138 of Negotiable Instruments Act against theapplicant that cheque dated 2-3-2009 issued by theapplicant was dishonoured . 4.Learned Counsel for the applicant submits that cheque given by the applicant was of Jila Sahakari Kendriya Bank Maryadit , Seoni and therefore, itwas to be produced before the same bank for its encashment. The respondent didnot produce that cheque to the particular bank. Itwas produced before the State Bank of India and State Bank of India hasreturned the same with the remark that State Bank of India has no account with Jila Sahakari Kendriya Bank Maryadit , Seoni .Learned Counsel for the applicant placed his reliance upon the judgment passedby Hon'ble the Apex Court in case of Shri Ishar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd., (2000) 3MPLJ 216. It is further submitted by the learned Counsel for the applicant thatState Bank of India, Branch Rampur , Jabalpur was not the bank which was referred in proviso (a)of the provisions of Section 138 of Negotiable Instruments Act and therefore,it cannot tie said that the cheque was dishonoured within six months of its issuance andtherefore, no offence under Section 138 of Negotiable Instruments Act is madeout. Consequently, complaint cannot be prosecuted against the applicant. 5.Learned Counsel for the respondent opposes the application he submits that thecomplaint was registered in a proper manner. No such objection has been raisedby the applicant before the Trial Court. However, the applicant has moved arevision petition before 18th Additional Sessions Judge, Jabalpur against the order dated 10-2-2010 by which particular of offence was shown tohim but, the revision was dismissed on 30-7-2010. Under such circumstances, itis requested that application under Section 482 of Cr.PC may be dismissed. 6.According to the provisions of Section 138 (a) of Negotiable Instruments Act cheque was required to be presented to 'the bank' withinthe period of six months from the date from which it is issued and within theperiod of its validity. Cheque was issued in thepresent case on 2-3-2009. 6.According to the provisions of Section 138 (a) of Negotiable Instruments Act cheque was required to be presented to 'the bank' withinthe period of six months from the date from which it is issued and within theperiod of its validity. Cheque was issued in thepresent case on 2-3-2009. Cheque was given of Jila Sahakari Kendriya Bank Maryadit , Seoni , Branch Dhuma , therefore, it was tobe produced before Jila Sahakari Kendriya Bank Maryadit , Seoni or any of its branches within the District Seoni . In the case of Shri Ishar Alloys Steel Ltd. (supra), Hon'ble the Apex Court has heldthat cheque has to be produced before the drawee bank under Section 138 (a) of Negotiable InstrumentsAct. It is also held that cheque could be presentedby the payee to the bank upon which it is drawn within six months. If it ispresented before any other bank for collection then, it should be reached to the drawee bank within six months of its issuance.Otherwise, person issuing cheque would be absolved ofhis criminal liability under Section 138 of the Act. A compound reading ofSections 3, 72 and 138 of the Act would leave no doubt in mind that the law mandatesthe cheque is to be presented to the bank on which itis drawn if the drawer is to be held criminally liable. Under suchcircumstances, it was for the respondent to present the cheque for encashment before any branch of Jila Sahakari Kendriya Bank Maryadit , Seoni or specially at Branch Dhuma . If itwas returned from the State Bank of India with the remark that concerned bank has no account with the Jila Sahakari Kendriya Bank Maryadit , Seoni then, it would besaid that cheque was not properly presented beforethe drawee bank. It never reached to the drawee bank for encashment. Under such circumstances, conditions mentioned in clause (a) of Section 138 of NegotiableInstruments Act was not fulfilled and therefore, no prosecution can bemade against the applicant. 7.Learned Counsel for the respondent raised an objection that the applicant didnot take such a plea before the Trial Court but, at present, law is settledthat in summons trial after registration of a case if any objection is raisedby the accused then, it cannot be decided by the Trial Court because it has nopower to review and therefore, if such objection is not raised before the TrialCourt, it makes no difference. 8.Under such circumstances, where the complaint under Section 138 of NegotiableInstruments Act is not maintainable it would be proper to interfere in theprosecution with extra-ordinary powers under Section 482 of Cr.PC . 9.Consequently, application under Section 482 of Cr.PC is hereby allowed. Proceedings pending before the Trial Court relating toComplaint Case No. 8960/2009, " Arvind Dubey Vs . Amit Dubey " is hereby quashed. 10.A copy of the order be sent to the concerned TrialCourt, so that proceedings may be stopped.