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Uttarakhand High Court · body

2013 DIGILAW 247 (UTT)

Satish Kumar Mishra v. Woodcastle SPA

2013-05-07

ALOK SINGH

body2013
Judgment Alok Singh, J. In all these petitions, filed under Section 482 Criminal Procedure Code, identical question of facts and law are involved; in all the petitions complainant and accused are the same, therefore, all the petitions are being disposed of by this common judgment. 2. For the sake of brevity facts of Criminal Misc. Application No. 110 of 2013 are being taken for the disposal of the cases. 3. Respondent/complainant preferred complaint in the court of Judicial Magistrate, Ramnagar, District Nainital against the accused/petitioner for an offence punishable under Section 138 Negotiable Instrument Act, 1881, stating therein that accused had been working as Chief Operating Officer for the purpose of booking for the resort at Ramnagar; having collected business and amount, accused used to send the same to the complainant at Ramnagar; in discharge of liability of outstanding amount accused has issued 14 different cheques in favour of the complainant; check was presented in the Oriental Bank of Commerce, Branch Ramnagar (Nainital) for encashment, however, as per the memorandum issued by the bank dated 18.10.2012 cheque was dishonoured on the ground ‘stop payment’, a legal notice was issued from Ramnagar to the accused/petitioner on 16.11.2012 demanding the cheque’s amount; accused/petitioner herein did not make payment of the cheque amount within the statutory period of the notice, despite receiving the notice. 4. Learned Judicial Magistrate, vide order dated 02.01.2013, was pleased to summon the accused/petitioner under Section 138 Negotiable Instrument Act. Feeling aggrieved accused/petitioner has preferred present petitions under Section 482 Code of Criminal Procedure assailing the summoning order. 5. Mr. Hitendra Kr. Nahata, learned counsel for the accused/petitioner submits that petitioner as well as complainant have their respective offices at Delhi; petitioner was supposed to develop the business while sitting at Delhi and petitioner was supposed to collect payment at Delhi; cheque was issued of the bank account of Delhi branch, therefore, cause of action, if any, has arisen at Delhi, however, complaints were wrongly filed at Ramnagar (Nainital) just to harass the petitioner. Mr. Hitendra Kr. Nahata, learned counsel for the accused/petitioner further contends that in Criminal Misc. Application No. 109 of 2013, Criminal Misc. Application No. 110 of 2013 and Criminal Misc. Mr. Hitendra Kr. Nahata, learned counsel for the accused/petitioner further contends that in Criminal Misc. Application No. 109 of 2013, Criminal Misc. Application No. 110 of 2013 and Criminal Misc. Application No. 111 of 2013 cheques were earlier presented for the encashment in the month of July, 2012, however, were dishonoured on the ground of ‘stop payment’, therefore, presentation of cheques second time in the month of October, 2012 shall not give fresh cause of action to the complainant and complainant should have filed the complaints within the stipulated period after dishonour of cheques for the first time, consequently, complaint is time barred. Mr. Hitendra Kr. Nahata, learned counsel for the accused/petitioner further contends that cheques were not issued by the petitioner in discharge of any liability rather cheques were issued by the petitioner as security because petitioner was supposed to collect payment form the different clients, however payments were being delayed for no fault of the petitioner; petitioner was pressurized to issue cheques as security saying petitioner may collect the outstanding amount from different clients himself. He further contends since payment was not being released by different clients despite best efforts made by the petitioner, therefore, complainant was informed not to present the cheques for encashment and stop payment, instructions were issued to the Bank. According to Mr. Hitendra Kr. Nahata, learned counsel for the accused/petitioner since payment was stopped for the above said reasons, therefore, no offence under Section 138 Negotiable Instrument Act can be said to have been made out against the petitioner. He further submits that the petitioner has also filed civil suit before the Delhi Court against the complaint for the return of the cheques, which were issued by the petitioner as security. 6. Petitioner has placed on record letter dated 01.11.2007 Annexure 2 to the petition, signed by both the parties; wherein it is clearly mentioned that petitioner shall develop the business for the resort at Ramnagar and shall collect the booking amount from the customers visiting Ramnagar and after deducting 3 per cent commission shall send the amount to the complainant at Ramnagar. Perusal of Annexure No. 2, letter dated 01.11.2007, would reveal that the address of MA Girija Hotel & Resorts is shown as Kesera Line, Ramnagar (Nainital). Customers and payments were agreed to be sent to the Resort at Ramnagar. Perusal of Annexure No. 2, letter dated 01.11.2007, would reveal that the address of MA Girija Hotel & Resorts is shown as Kesera Line, Ramnagar (Nainital). Customers and payments were agreed to be sent to the Resort at Ramnagar. As per the complainant cheques were given to the complainant at Ramnagar for discharge all the liabilities of outstanding amount which was to be paid at Ramnagar; cheques were presented by the complainant at Ramnagar and were returned to the complainant at Ramnagar by the bankers on the ground of ‘stop payment’. 7. A complaint under Section 138 Negotiable Instrument Act can be filed before the court, where part of cause of action has arisen. As discussed herein before, clients and money were for the resort at Ramnagar and cheques were issued in discharge of the liabilities of the outstanding amount for the booking for resort at Ramnagar, therefore, it can safely be said that money was to be paid and liability was to be discharged at Ramnagar (Nainital). Moreover, cheques were presented at Ramnagar (Nainital) and were returned to the complainant at Ramnagar (Nainital), therefore, in my humble opinion, Ramnagar court has jurisdiction to hear and decide the complaint made under Section 138 Negotiable Instrument Act. 8. Hon’ble Apex Court in the matter of MSR Leathers vs. S. Planiappan reported in 2013 (1) SCC, 177 has held that every time a cheques is presented in the manner and within the time stipulated in the proviso of Section 138 of the Act followed by a notice within the meaning of clause (b) of the proviso of Section 138 and the drawer fails to make the payment of amount within the stipulated period of 15 days after the date of receiving such notice, a cause of action accrues to the holder of the cheque to institute proceedings for the prosecution of drawer. 9. In view of the dictum of the Hon’ble Apex Court since in Criminal Misc. Application No. 109 of 2013, Criminal Misc. Application No. 110 of 2013 and Criminal Misc. 9. In view of the dictum of the Hon’ble Apex Court since in Criminal Misc. Application No. 109 of 2013, Criminal Misc. Application No. 110 of 2013 and Criminal Misc. Application No. 111 of 2013 cheques were presented for encashment second time in the month of October, 2012 and same were dishonoured and intimation regarding dishonour on the ground of ‘stop payment’ was received by the complainant on 18.10.2012 and thereafter notices were issued by the complainant to the petitioner on 16.11.2012 within 30 days from the date of receipt of such information demanding the cheque amount within 15 days from the date of receipt of the notice and thereafter accused/petitioner failed to make payment of the cheque amount, therefore, complaints are legally maintainable and can not be said to be time bared. 10. Hon’ble Apex Court in the case of Laxmi Dyechem vs. State of Gujrat and others reported in 2012 (11) 365 has held that ‘stop payment’, ‘signature not matching’ or ‘account closed’ would also amount to dishonour of the cheque on the ground ‘amount of money is insufficient’ to honour the cheque. It is further held that there is statutory presumption under Section 139 in favour of the holder of the cheque against the drawer of the cheque that cheque was issued by the drawer in discharge of liability and such statutory presumption has to be rebutted by the accused. In the humble opinion of this Court such rebuttal can be made by the accused only during the trial and not at the summoning stage by way of filing petition under Section 482 of the Code of Criminal Procedure or under Section 226 of Constitution of India challenging the summoning order. 11. In petition no. 306 of 2013, the defence of the petitioner is that cheque in question was signed by Mr. Manoj Mishra and was not signed by the petitioner, therefore, petitioner ought not to have been summoned. As per the averments made in the complaint petitioner has issued the cheques to the complainant, under his signature. The question as to whether in fact petitioner has issued the cheques or Manoj Mishra has issued the cheqes can be gone into during the trial not at this stage because at this stage this Court is not supposed to enter into the rival contentions of fact. 12. The question as to whether in fact petitioner has issued the cheques or Manoj Mishra has issued the cheqes can be gone into during the trial not at this stage because at this stage this Court is not supposed to enter into the rival contentions of fact. 12. In view of the above discussion, I do not find any fault with the impugned summoning order, therefore, present petitions are dismissed, however, it is made clear that still it would be open to the petitioner to raise all the legal points before the Magistrate concerned. 13. Let a copy of this judgment shall be placed in all the connected files.