Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 41 (MP)

Amit Dubey v. Arvind Dubey

2012-01-10

N.K.GUPTA

body2012
Judgment With the 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 under Section 482 of Cr.PC. 3. Facts of the case are that, the respondent has moved a complaint for offence punishable under Section 138 of Negotiable Instruments Act against the applicant that cheque dated 2-3-2009 issued by the applicant 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, it was to be produced before the same bank for its encashment. The respondent did not produce that cheque to the particular bank. It was produced before the State Bank of India and State Bank of India has returned 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 passed by Hon'ble the Apex Court in case of Shri Ishar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd., (2000) 3 MPLJ 216 . It is further submitted by the learned Counsel for the applicant that State 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 and therefore, no offence under Section 138 of Negotiable Instruments Act is made out. Consequently, complaint cannot be prosecuted against the applicant. 5. Learned Counsel for the respondent opposes the application he submits that the complaint was registered in a proper manner. No such objection has been raised by the applicant before the Trial Court. However, the applicant has moved a revision petition before 18th Additional Sessions Judge, Jabalpur against the order dated 10-2-2010 by which particular of offence was shown to him but, the revision was dismissed on 30-7-2010. Under such circumstances, it is 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' within the period of six months from the date from which it is issued and within the period of its validity. Under such circumstances, it is 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' within the period of six months from the date from which it is issued and within the period of its validity. Cheque was issued in the present case on 2-3-2009. Cheque was given of Jila Sahakari Kendriya Bank Maryadit, Seoni, Branch Dhuma, therefore, it was to be 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 held that cheque has to be produced before the drawee bank under Section 138 (a) of Negotiable Instruments Act. It is also held that cheque could be presented by the payee to the bank upon which it is drawn within six months. If it is presented 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 of his criminal liability under Section 138 of the Act. A compound reading of Sections 3, 72 and 138 of the Act would leave no doubt in mind that the law mandates the cheque is to be presented to the bank on which it is drawn if the drawer is to be held criminally liable. Under such circumstances, 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 it was 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 be said that cheque was not properly presented before the drawee bank. It never reached to the drawee bank for encashment. Under such circumstances, conditions mentioned in clause (a) of Section 138 of Negotiable Instruments Act was not fulfilled and therefore, no prosecution can be made against the applicant. 7. It never reached to the drawee bank for encashment. Under such circumstances, conditions mentioned in clause (a) of Section 138 of Negotiable Instruments Act was not fulfilled and therefore, no prosecution can be made against the applicant. 7. Learned Counsel for the respondent raised an objection that the applicant did not take such a plea before the Trial Court but, at present, law is settled that in summons trial after registration of a case if any objection is raised by the accused then, it cannot be decided by the Trial Court because it has no power to review and therefore, if such objection is not raised before the Trial Court, it makes no difference. 8. Under such circumstances, where the complaint under Section 138 of Negotiable Instruments Act is not maintainable it would be proper to interfere in the prosecution 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 to Complaint Case No. 8960/2009, "Arvind Dubey Vs. Amit Dubey" is hereby quashed. 10. A copy of the order be sent to the concerned Trial Court, so that proceedings may be stopped.