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2013 DIGILAW 585 (RAJ)

Alok Sharma v. State of Rajasthan

2013-03-18

R.S.CHAUHAN

body2013
Hon'ble CHAUHAN, J.—The petitioner, Alok Sharma, is aggrieved by the order dated 26.02.2008 passed by the learned Judicial Magistrate, No.4, Ajmer, whereby the learned Magistrate has taken cognizance against the petitioner for offence under Section 138 of the Negotiable Instruments Act, 1881 (`the Act' for short). 2. The brief facts of the case are that the petitioner gave a cheque, namely cheque No.093189, dated 19.5.2007, for an amount of Rs.1,79,400.00 in favour of the complainant, Anurag Bhatnagar, as a payment of his commission for the services rendered by him. The cheque was drawn on the State Bank of Patiala, Branch Baroti (H.P.). The cheque was presented by Anurag Bhatngar to his Bank, namely the Punjab National Bank, on 15.11.2007, for encashment. But the said cheque was sent to the State Bank of Patiala for encashment on 21.11.2007 i.e. after the period of the cheque's validity. Therefore, the State Bank of Patiala returned the cheque on the ground that it was “out-dated”. Since, the cheque had bounced, Anurag Bhatnagar sent a notice to the petitioner for the payment of the cheque amount. However, the petitioner did not make the said payment. Therefore, Anurag Bhatnagar filed a complaint for offence under Sec. 138 of the Act. By order dated 26.2.2008, the learned Magistrate took cognizance against the petitioner, and issued a bailable warrant in order to secure his presence. Hence, this petition before this Court. 3. Mr. Suresh Goyal, the learned counsel for the petitioner, has raised the following contentions before this Court :firstly, according to Section 138 of the Act, the cheque has to be submitted before the Bank on which it is drawn, during the period of the cheque's validity. However, in the present case, the cheque reached the State Bank of Patiala, the Bank on which it was drawn, after a period of six-months. Therefore, the cheque reached the State Bank of Patiala after the period of validity. Moreover, the Bank refused to encash the said cheque on the ground that it is “out-dated”. Secondly, Proviso (a) of Section 138 of the Act clearly uses the word “the bank”. Therefore, the article “the” refers to the Bank on which the cheque was drawn. The proviso does not refer to the collecting Bank. Moreover, the Bank refused to encash the said cheque on the ground that it is “out-dated”. Secondly, Proviso (a) of Section 138 of the Act clearly uses the word “the bank”. Therefore, the article “the” refers to the Bank on which the cheque was drawn. The proviso does not refer to the collecting Bank. Thus, even if the cheque were submitted for encashment to the Punjab National Bank, on 15.11.2007, its dishonour would not bring the case within the four corners of Section 138 of the Act. In order to buttress this contention, the learned counsel, has relied upon the case of Shri Ishar Alloy Steels Ltd. vs. Jayaswals Neco Ltd. (2001) 3 SCC 609 . Thirdly, while taking cognizance the learned Magistrate has passed a mechanical order. The learned Magistrate has not considered the reason for dishonour of cheque. According to the memo of the Bank, the cheque was not honoured, as it was “out-dated”. Hence, the order dated 26.02.2008 suffers from non-application of mind. Thus, it deserves to be interfered with. 4. On the other hand, Mr. Parag Rastogi, the learned counsel for the complainant-respondent, has contended that Section 75 of the Act deals with presentation of a cheque. According to Section 75 of the Act, the presentation for acceptance or payment may be made to the duly authorized agent of the drawee. Since, the complainant-respondent had received the cheque, in dispute, on 14.11.2007, he was justified in submitting its for encashment on 15.11.2007. Secondly, Section 75-A of the Act deals with “Excuse for delay in presentment for acceptance or payment”. According to the said provision, a delay in presentment for acceptance of payment is excused, if the delay is caused by circumstances beyond the control of the holder. Since, the cheque was submitted for encashment during the period of its validity, a subsequent delay caused by the Punjab National Bank for presenting the cheque to the State Bank of Patiala for encashment should be excused. For, the presentation by the Punjab National Bank, after same delay, is beyond the control of the complainant-respondent. Thirdly, a plausible defense available to the petitioner cannot be looked into by the learned Magistrate at the time of taking of cognizance. For, the presentation by the Punjab National Bank, after same delay, is beyond the control of the complainant-respondent. Thirdly, a plausible defense available to the petitioner cannot be looked into by the learned Magistrate at the time of taking of cognizance. Lastly, the learned counsel has distinguished the case of Shri Ishar Alloy Steels Ltd. (supra) on the ground that the Apex Court had not considered the provisions of Sections 75 and 75-A of the Act in that case. Hence, the learned counsel has supported the impugned order. 5. Heard the learned counsel for the parties, perused the impugned order, and considered the case law cited at the Bar. 6. Section 138 of the Act is as under :- 138. Hence, the learned counsel has supported the impugned order. 5. Heard the learned counsel for the parties, perused the impugned order, and considered the case law cited at the Bar. 6. Section 138 of the Act is as under :- 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 of 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 provision of this Act, be punished with imprisonment for a term which may extend to one 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 fifteen 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. 7. A bare perusal of the provision clearly reveals that in the first part, the word used is “a banker”; it is only in the second part that the word “the bank” has been used. The word “the” particularizes a word used previously in the same sentence. 7. A bare perusal of the provision clearly reveals that in the first part, the word used is “a banker”; it is only in the second part that the word “the bank” has been used. The word “the” particularizes a word used previously in the same sentence. Since, the word “a banker” refers to the bank with whom an account is maintained by the drawer, obviously, the word “the bank” would refer to the banker with whom an account is maintained by the drawer. Even subsequently, in the Proviso (a), the word “the bank” has been used. Thus, the word “the bank” would refer to the bank on which drawer has drawn the cheque. 8. In the case of Shri Ishar Alloy Steels Ltd. (supra), the Apex Court has opined that the use of the words “a banker” and “the bank” in the Section are indicative of the intention of the legislation. The bank referred to in proviso (a) of Section 138 of the Act would mean the drawer bank on which the cheque is drawn, and not all the banks where the bank cheque is presented for collec-tion, including the bank of the payee, in whose favour the cheque is issued. Furthermore, the Apex Court opined that since the cheque was presented to the drawer's bank after the period of validity, the Criminal Court had no jurisdiction to issue the process against the appellant in that particular case. 9. Section 75 of the Act existed in the statute since 1881. Section 75-A was inserted in 1920. On the other hand, Chapter XVII was inserted in 1988. Thus, while inserting Chapter XVII, naturally the Parliament was well aware of the fact that Section 75 and Section 75-A already exist in the Act. Even thereafter, Section 138 of the Act does not make any mention, and is not subjected to, Section 75 and Section 75-A of the Act. Even after knowing the fact that Section 75 permits the presentation of the cheques to the duly authorized agent of the drawee, still Section 138 of the Act speaks of the presentation of the cheque to drawer's bank within a period of cheque's validity. Section 138 of the Act is a penal provisions, obviously, it has to be interpreted as narrowly as possible. Therefore, Section 75 and Section 75-A of the Act would not rush to the rescue of the complainant. Section 138 of the Act is a penal provisions, obviously, it has to be interpreted as narrowly as possible. Therefore, Section 75 and Section 75-A of the Act would not rush to the rescue of the complainant. For, the complainant must bring his case within the four corners of Section 138 of the Act. 10. The learned counsel for the complainant-respondent has brought an e-mail to the notice of this Court. In the e-mail dated 27.11.2007 sent by the complainant to the petitioner, the complainant had clearly pointed out to the petitioner that the cheque, namely cheque No.093189 dated 19.05.2007 was received on 14.11.2007. He had also asked the petitioner as to why the said cheque was sent after such an inordinate delay?. For, the delay would not give him sufficient time for depositing the cheque for clearing. Despite the fact that the complainant was well aware that he would not have sufficient time for getting the cheque cleared, still he submitted the cheque for encashment. Thus, he cannot claim that things were beyond his control. Hence, by his very conduct, he cannot seek the benefit of Section 75-A of the Act. 11. Although, it is true that at the time of taking cognizance, the learned trial Court is not expected to sift through the evidence, but simultaneously the learned trial Court has to consider whether all the ingredients of the offence exist or not. In the present case, the learned trial Court has not examined the reason for dishonouring of the cheque. If it had done so, it would have realized that the cheque was dishonoured, as it was “out-dated”. Thus, the learned trial Court has passed its order in a mechanical manner. Hence, the impugned order clearly suffers from the virus of non-application of mind. 12. For the reasons given above, this Court allows this petition, and quashes the order dated 26.02.2008. 13. Upon disposal of the main petition, the stay application, filed therewith, does not survive; the same is also disposed of.