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Allahabad High Court · body

2013 DIGILAW 1422 (ALL)

DEEPAK GOEL v. STATE OF U. P.

2013-05-14

RAMESH SINHA

body2013
Hon’ble Ramesh Sinha, J. : Heard Sri S.K. Tyagi, learned counsel for the applicant and learned A.G.A. for the State. 2. This 482 Cr.P.C. application has been filed with a prayer to quash the entire proceedings of Complaint Case No. 2120 of 2011 under Section 138 N.I. Act, police station Sadar Bazar Meerut, District Meerut pending in the Court of A.C.J.M., Court No.6, Meerut. 3. Brief facts of the case are that a complaint has been filed by Sanjay Agarwal-opposite party no.2 ( hereinafter referred to as the complainant) against the applicant alleging that on 4.12.2004, the applicant along with his uncle, namely, Sri P.D. Agarwal had come to the shop of the complainant and purchased some items for his house such as plywood, mica etc. after making the payment of the same went away. Thereafter on 14.12.2004, the applicant along with his uncle Sri P.D. Agarwal again came to the shop of complainant and purchased some goods for his house amounting to Rs. 2,25,106/- out of which Rs. 106/- was paid by him in cash and for remaining amount, i.e., Rs. 2,25,000/- he has given Cheque No. 250468 dated 15.12.2004 of the H.D.F.C. bank Ltd. in the presence of his uncle P.D. Agarwal and one Aman Gupta and had stated that the said cheque would be encashed on the presentation before the bank. On 15.12.2004, when complainant was going to place the said cheque for its encashment, the uncle of the applicant P.D. Agarwal had asked him on phone not to place the said cheque for encashment as the applicant does not have sufficient fund in his account and further asked him to place the said cheque in March, 2005 for encashment. Thereafter the complainant produced the said cheque through its banker on 1.3.2005 for encashment but the same was dishonoured by the concerned bank and a memo dated 5.3.2005 was sent with an endorsement that payment was stopped by the drawer. When the said cheque was dishonoured, the complainant gave a notice to the applicant through his counsel on 19.3.2005 which was replied by the applicant through his counsel on 24.3.2005, hence the present complaint has been filed by complainant alleging that the applicant has no intention to pay the amount in question and has deliberately issued the cheque in question on 15.12.2004 and gave a false advertisement in the newspaper that his cheque has been lost. 4. 4. In the present complaint, the learned Magistrate has recorded the statement of the complainant and Sri P.D. Agarwal-uncle of the applicant and one Aman Gupta under Sections 200 and 202 Cr.P.C. and after having found prima facie case against the applicant summoned him by passing the impugned order, hence the present application. 5. Learned counsel for the applicant submits that the disputed cheque bearing Cheque No. 250468 of R.D.C., 29 Rajnagar Ghaziabad Branch of HDFC Bank Ltd. bearing the signature of the applicant was lost on 29.11.2004 for which he has given an information at police station Sihanigate, District Ghaziabad on 29.11.2004 itself. He also informed the concerned Bank about the lost of the said cheque on 2.12.2004 requesting the Bank to make stop payment with respect to the said cheque. Thereafter he also got a news item published with respect to the said cheque in a daily newspaper at district Ghaziabad on 7.12.2004. He further submits that after receiving a notice under Section 138 N.I. Act from the advocate of the complainant, the applicant sent a reply of the same through his advocate by registered post. He further submits that there was no debt or liability on the applicant of the opposite party no.2 and the lost cheque of the applicant was misused by opposite party no.2. The cheque in question was not dishonoured due to insufficient funds but it was endorsed in the memo of bank that payment was stopped by the drawer. He submits that no offence under Section 138 N.I. Act is made out against the applicant. In support of his submission, he has placed reliance on several judgments of the Apex Court, i.e., in the case of Raj Kumar Khurana vs. State ( NCT of Delhi) and another reported in ( 2009)2 SCC ( Cri.) 936, R. Kalyani vs. Janak C. Mehta & others ( 2009) 1 SCC ( Cri.) 567 and DCM Financial Services Limited vs. J.N. Sareen & another ( 2008) 3 SCC ( Cri.) 401. 6. Learned A.G.A. vehemently opposed the said prayer and has submitted that the offence in question is said have been committed in the year 2004. 6. Learned A.G.A. vehemently opposed the said prayer and has submitted that the offence in question is said have been committed in the year 2004. He submits that the applicant had purchased certain goods from the complainant in lieu of which he has issued the cheque in question in favour of complainant and he has set up a false defence that the cheque in question was lost due to which stop payment was made by the bank on his request. He submits that from a perusal of the complaint as well as the statement of the complainant and its witnesses, cognizable offence under Section 138 N.I. Act is disclosed against the applicant for which he is liable to be prosecuted. 7. Considered the submissions advanced by learned counsel for the parties and perused the record. 8. From a perusal of the record, it is apparent that the applicant has a liability to make payment to complainant for which he had issued the cheque in question in favour of complainant and he has not denied the his signature on the cheque in question. The defence set up by the applicant with respect to the lost of cheque cannot be adjudicated by this Court at this stage. The applicant has to lead his defence before the trial court. The Apex Court in the case of M/s. Modi Cements Limited vs. Shri Kuchil Kumar Nandi reported in JT 1998 ( 2) SC 198 has held that once a cheque is issued and on presentation is dishonoured, penal provision is attracted. Stopping of payment will not preclude an action under Section 138 N.I. Act. It was further held that the court taking cognizance of the complaint under Section 138 N.I. Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly gets an opportunity under Section 139 of the Act to rebut the presumption at the trial. Once the cheque is issued by the drawer a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawee or to the Bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of a cheque in due course. Once the cheque is issued by the drawer a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawee or to the Bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of a cheque in due course. In this regard paras-16, 18, 19, 20 and 21 of the said judgment are relevant, hence the same are quoted hereinbelow:- “16. We see great force in the above submission because once the cheque is issued by the drawer a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawer or to the Bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by the drawer or the holder of a cheque in due course. The object of Chapter XVII, which is intituled as “OF PENALTIES IN CASE OF DISHONOR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS” and contains Sections 138 to 142, is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques. It is for this reason we are of the considered view that the observations of this Court in Electronics Trade & Technology Development Corporation Ltd., Secunderabad reported in JT 1996 ( 1) SC 643 in paragraph 6 to the effect “Suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions. Section 138 does not get attracted”, does not fit in with the object and purpose for which the above chapter has been brought on the Statute Book. 18. The aforesaid propositions in both these reported judgments, in our considered view, with great respect are contrary to the spirit and object of Sections 138 and 139 of the Act. Section 138 does not get attracted”, does not fit in with the object and purpose for which the above chapter has been brought on the Statute Book. 18. The aforesaid propositions in both these reported judgments, in our considered view, with great respect are contrary to the spirit and object of Sections 138 and 139 of the Act. If we are to accept this proposition it will make Section 138 a dead letter, for, by giving instructions to the Bank to stop payment immediately after issuing a cheque against a debt or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that a deemed offence was committed. Further the following observations in para 6 in Electronics Trade & Technology Development Corporation Ltd., Secunderabad ( supra). “........... Section 138 of the Act intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly” in our opinion, do not also lay down the law correctly. 19. Section 138 of the Act is a penal provision wherein if a person draws a cheque on an account maintained by him with the 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, on the ground either because of the amount of money standing to the credit of that account is insufficient to honor 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. The distinction between the deeming provision and the presumption is well discernible. To illustrate, if a person, draws a cheque with no sufficient funds available to his credit on the date of issue, but makes the arrangement or deposited the amount thereafter before the cheque is out in the bank by the drawer, and the cheque is honored, in such a situation drawing of presumption of dishonesty on the part of the drawer under Section 138 would not be justified. Section 138 of the Act gets attracted only when the cheque is dishonored. 20. On careful reading of Section 138 of the Act, we are unable to subscribe to the view that Section 138 of the Act draws presumption of dishonesty against drawer of the cheque if he without sufficient funds to his credit in his bank account to honor the cheque issues the same and, therefore, amounts to an offence under Section 138 of the Act. For the persons stated hereinabove, we are unable to share the views expressed by this Court in the above two cases and we respectfully differ with the same regarding interpretation of Section 138 of the Act of the limited extent as indicated above. 21. It is needless to emphasize that the Court taking cognizance of the complaint under Section 138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly gets an opportunity under Section 139 of the Act to rebut the presumption at the trial. It is for this reason we are of the considered opinion that the complaints of the appellant could not have been dismissed by the High Court at the threshold.” 9. The judgment relied upon by the learned counsel for the applicant in the case of Raj Kumar Khurana ( Supra) is totally distinguishable from the present case and cannot be made applicable to the instant case. Moreover, the other two case laws which have been cited by the learned counsel for the applicant are also completely distinguishable from the facts of the present case and they do not deal with the controversy involved in the present case, hence the same are also not applicable in the present case. 10. Thus, in view of the law laid down by the Apex Court in the case of M/s Modi Cements Limited ( Supra), the arguments raised by the learned counsel for the applicant is not sustainable in the eyes of law. 11. The application lacks merit and is accordingly dismissed.