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2013 DIGILAW 1183 (ALL)

Hriday Ram Yadav v. State of U. P.

2013-04-18

SURENDRA VIKRARM SINGH RATHORE

body2013
JUDGMENT Hon’ble Surendra Vikrarm Singh Rathore, J. : We have heard learned counsel for the petitioner, learned A.G.A. and perused the material available on record. 2. The instant writ petition has been filed challenging the order dated 18.09.2006 passed by the learned Sessions Judge/F.T.C.-1, Sultanpur and also the order dated 06.03.2006 whereby the petitioner was summoned to face trial for the offence under Section 138 Negotiable Instrument Act and also the order of revisional court dated 18.09.2002 in Criminal Revision No.306 of 2006 whereby the revision was also dismissed. 3. Facts necessary for the disposal of the instant petition in brief are that the complainant was dealing in the business of building material and he had supplied building material to the petitioner who was the Director Rajiv Gandhi Institute of Waste Land and Rural Development, Sultanpur. He issued two cheques of Rs.45,000/- each drawn at Canara Bank, Sultanpur. The said cheques were deposited by the petitioner in his account in Bank of Baroda, Civil Line Branch, Sultanpur but the same were returned with the report of insufficiency of fund. Thereafter notice dated 01.11.2004 was sent by registered post but no payment was made. So on 01.12.2004 the complaint was filed and alongwith the complaint the original cheque, memo sent by the Bank and copy of notice was also filed. Complainant got himself examined under Section 200 Cr.P.C. and on the basis of the such evidence, the petitioner was summoned to face trial under Section 138 Negotiable Instrument Act. Feeling aggrieved thereby the petitioner preferred criminal revision and he also failed to get favour from the revisional court. 4. A perusal of the impugned order shows that the revision was contested on the ground that when the fact of dishonouring of the cheque came to his notice then he issued a separate cheque of Rs.1,25,000/- relating to a different account at Lucknow and the same was encashed by the complainant. This amount of Rs.1,25,000/- included Rs.90,000/- as the amount of the earlier cheque and Rs.30,000/- an advance for further supply. However, this fact was denied by the complainant who has stated that the said cheque was issued with reference to another liability of the petitioner and had no connection with the instant transaction. This amount of Rs.1,25,000/- included Rs.90,000/- as the amount of the earlier cheque and Rs.30,000/- an advance for further supply. However, this fact was denied by the complainant who has stated that the said cheque was issued with reference to another liability of the petitioner and had no connection with the instant transaction. It was further submitted that the petitioner had deposited a government cheque of Rs.1,00,000/- in his account but the same could not be encahsed because of some technical mistake on the part of the Bank. Due to which the cheque was dishonoured and there was no intention of the petitioner, not to make payment of the cheque amount. 5. In the instant petition it is submitted that in a proceeding under Section 138 Negotiable Instrument Act, the dates when the cheque was issued, the date when the cheque was presented before the Bank when memo was received from the Bank, when notice was issued, when the notice was served and the date of filing of the complaint are very material dates, but none of these dates have been mentioned in this petition. 6. Learned counsel for the opposite party submits that he had filed the relevant documents and after perusal of the same the impugned order was passed. Hence, there is no illegality. 7. Learned counsel for the petitioner has placed reliance on the pronouncement of Hon’ble the Apex Court in the case of N.K. Wahi Vs. Shekhar Singh and Others reported in [2007 (58) ACC 290]. The Hon’ble Apex Court has held in para 10 as under : “In order to bring application of Section 138 the complaint must show: 1. That cheque was issued, 2. The same was presented; 3. It was dishonoured on presentation; 4. A notice in terms of the provisions was served on the person sought to be made liable. 5. Despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice.” 8. Learned counsel for the petitioner has placed reliance on the pronouncement of Hon’ble the Apex Court in the case of Rahul Builders Vs. Arihant Fertilizers & Chemicals and Another reported in (2008) 2 SCC 321 . Learned counsel for the petitioner has placed reliance on the pronouncement of Hon’ble the Apex Court in the case of Rahul Builders Vs. Arihant Fertilizers & Chemicals and Another reported in (2008) 2 SCC 321 . The Hon’ble Apex Court has held in para 10 as under : “Service of a notice, it is trite, is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main section would not, Unless a notice is served in conformity with proviso (b) appended to Section 138 of the Act, the complaint petition would not be maintainable. Parliament while enacting the said provision consciously imposed certain conditions. One of the conditions was service of a notice making demand of the payment of the amount of cheque as is evident from the use of the phraseology “payment of the said amount of money”. Such a notice has to be issued within a period of 30 days from the date of receipt of information from the Bank in regard to the return of the cheque as unpaid. The statute envisages application of the penal provisions. A penal provision should be construed strictly; the condition precedent wherefor is service of notice. It is one thing to say that the demand may not only represent the unpaid amount under cheque but also other incidental expenses like costs and interests, but the same would not mean that the notice would be vague and capable of two interpretations. An omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not subserve the requirement of law. Respondent 1 was not called upon to pay the amount which was payable under the cheque issued by it. The amount which it was called upon to pay was the outstanding amounts of bills i.e. Rs.8,72,409/-. The notice was to respond to the said demand. Pursuant thereto, it was to offer the entire sum of Rs.8,72,409/-. No demand was made upon it to pay the said sum of Rs.1,00,000/- which was tendered to the complainant by cheque dated 30.04.2000. What was, therefore, demanded was the entire sum and not a part of it.” 9. Learned counsel for the petitioner has also placed reliance on the pronouncement of Hon’ble the Apex Court in the case of Sivakumar Vs. What was, therefore, demanded was the entire sum and not a part of it.” 9. Learned counsel for the petitioner has also placed reliance on the pronouncement of Hon’ble the Apex Court in the case of Sivakumar Vs. Natarajan reported in [2009 (65) ACC 922]. The Hon’ble Apex Court has held in para 10 as under : “By reason of the provisions of the Act, a legal presumption in regard to commission of a crime has been raised. The proviso appended thereto, however, states that nothing contained in the main provision would apply unless conditions specified in Clauses (a) (b) and (c) of the proviso, thereof, are complied with. Clauses a, b, c lay down conditions precedent of the proviso, therefore, for applicability of the main provision. Section 138 of the Act being penal in nature, indisputably, warrants strict construction.” Before proceeding further, the court considers it necessary to quote Section 138 of the Negotiable Instrument Act, which is hereby reproduced as under: - ”138 OF NEGOTIABLE INSTRUMENT ACT. CHAPTER XVII OF PENALTIES IN CASE OF DISHONOUR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS: - 138. Dishonour of cheque for insufficiency, etc. CHAPTER XVII OF PENALTIES IN CASE OF DISHONOUR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS: - 138. Dishonour of cheque for insufficiency, etc. of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: \ Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier, (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.” 10. In view of the aforesaid legal position, a complaint under Section 138 of N. I. Act must establish relevant dates either by documentary or by oral evidence. In view of the aforesaid legal position, a complaint under Section 138 of N. I. Act must establish relevant dates either by documentary or by oral evidence. In the facts of this case, it transpires that the cheques were issued on 04.05.2004 and the said cheques were presented before the Bank on 06.05.2004 and the same were dishonoured and thereafter notice was issued on 01.11.2004 the date on which the memo from the Bank dishonouring the cheque was issued has not been mentioned in the counter affidavit nor there is any material on record to verify the said date. Unless and until the date on which the memo, dishonouring the cheque has been received the issue of notice cannot be said to be within time because as per law it has to be within 30 days from the date of refusal. Admittedly, in this case, the notice was issued on 01.11.2004, therefore, there is a long gap between the presentation of the cheques and the issuing of notice. 11. It transpires from the record that there was no document or submission or averment in the complaint regarding service of notice on the applicant and the revisional court has considered this aspect and has observed in his order that notice was issued on 01.11.2004 and the complaint was filed on 01.12.2004, therefore, it is within time but this approach of the revisional court was a casual approach towards the facts of the case. In the cases of this nature the dates are very relevant to constitute the offence under Section 138 of Negotiable Instrument Act as has been mentioned in the aforementioned case laws. 12. So far as the submission regarding payment of the amount by the subsequent cheque is concerned, it is a disputed question of fact, hence, this Court refrains from expressing any opinion on this point. 13. In view of the aforementioned factual and legal position the application deserves to be allowed and is hereby allowed. Impugned orders dated 06.03.2006 and 18.09.2004 aforementioned, are hereby set aside. Trial court is hereby directed to pass afresh orders on the complaint. It is further provided that trial court shall permit the complainant to adduce additional evidence, if he so wish.