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2013 DIGILAW 777 (ALL)

Lal Bahadur Singh v. State of U. P.

2013-03-08

ADITYA NATH MITTAL

body2013
JUDGMENT Hon’ble Aditya Nath Mittal, J. : Heard learned counsel for the revisionist, learned AGA and the learned private counsel appearing for opposite party no.2. 2. This Criminal revision has been filed against order dated 12.7.2010 passed by Additional Chief Judicial Magistrate, Court No.9, District Jhansi, by which the application for discharge has been rejected. 3. Learned counsel for the revisionist has submitted that the alleged cheques were given upon the understanding that whenever the revisionist will get his payment from the Nagar Palika then he will repay the amount. It has also been submitted that the cheques were issued by way of collateral security therefore, the offence punishable under Section 138 Negotiable Instruments Act is not made out. 4. Learned counsel for the opposite party no.2 has submitted that the accused has not denied that he had issued the alleged cheques which were dishonoured by the concerned Bank. It has also been submitted that in matters under Section 138 Negotiable Instruments Act there is no provision of discharge in summons cases therefore, the discharge application was not maintainable. It has also been submitted that previously the revisionist had challenged the summoning order, by an application under Section 482 Cr.P.C. which was dismissed by this Court on 9.2.2005. 5. Concealing the said order, the revisionist had also filed a revision before the Sessions Judge, District Jhansi and the said revision has also been dismissed on 28.7.2006. The application for discharge was not maintainable. 6. Learned counsel for opposite party no.2 has relied upon Sanjeev Rai Vs. State of U.P. and another 2005 (1) J.I.C., page 652, (Alld.), in which it has been held as under: - ”The provisions of Section 138 of the Negotiable Instruments Act, 1881 (as amended up-to-date) show that the offence under Section 138 of the Negotiable Instruments Act shall be punishable with imprisonment for a term which could be extended to two years or with fine which may extended to twice the amount of cheques. (The term of imprisonment has been raised from one year to two years by amending Act No.55 of 2002). According to Section 2(w) of the Cr.P.C. “summons-case” means a case relating to an offence, and not being a warrant-case. (The term of imprisonment has been raised from one year to two years by amending Act No.55 of 2002). According to Section 2(w) of the Cr.P.C. “summons-case” means a case relating to an offence, and not being a warrant-case. The “warrant-case” has been defined in Section 2(x) of the Cr.P.C. which means ‘a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years’. Thus, offence under Section 138 of the Negotiable Instruments Act is a summons-case. The trial of the summons-case is controlled by Chapter XX of the Cr.P.C. where there is no provision for the discharge. Section 245 Cr.P.C., which has been applied by the Magistrate, relates to the trial of warrant-case which is controlled by Chapter XIX, Cr.P.C., which is not applicable to the present case which is a summons-case.” 7. The opposite party no.2 had filed a complaint under Section 138 Negotiable Instruments Act alleging that the accused was doing contractor work in Nagar Palika and the complainant had retired in July 1998 from the post of teacher and he had received a sum of Rs.3.75 lakhs from the funds. The accused has demanded Rs.1.50 lakh for the work of contractor-ship and has promised to repay the amount without any objection after getting the payment from the Nagar Palila. The accused had issued cheques dated 18.11.2001 and 20.12.2001 amounting to Rs.1 lakh and 40,000/- respectively with the belief that both the cheques shall be honoured by the Bank. The cheques were submitted before the Bank on 20.4.2002 where the cheques were dishonoured with the remark of insufficient funds in the account. The complainant had issued notice dated 30.4..2002 and again sent a notice dated on 8.5.2002 which was served upon the accused on 9.5.2002 in which it was requested that payment be made within 15 days. After expiry of the said period of 15 days the accused has not made the payment therefore, he has committed offence punishable under Section 138 Negotiable Instruments Act. 8. The summoning order was challenged before this Court in Criminal Misc. Application No.1054 of 2005 which was disposed of finally by this Court by order dated 9.2.2005 holding that no interference is required. 8. The summoning order was challenged before this Court in Criminal Misc. Application No.1054 of 2005 which was disposed of finally by this Court by order dated 9.2.2005 holding that no interference is required. The accused has also filed a Criminal Revision No.28 of 2005 which was barred by limitation and the application to condone the delay was not pressed therefore, the revision was dismissed. 9. Learned Court below has considered all the aspects of the matter and has come to the conclusion that the cheques were not issued as a collateral security and the minor discrepancy regarding payment mode of money are not relevant. Learned Court below has come to the conclusion that at this stage a prima facie case has to be seen and at this stage the prima facie case was established and it was not alleged by the accused that said cheques were not in his signatures or that he has made payment of the said cheques. The contention of learned counsel for revisionist that payment was to be done after receiving payment from Nagar Palika, has no force because it could be just a circumstance or a promise but not the condition precedent. The complainant was not a partner in the said business of contractor ship, and he cannot be asked to wait indefinitely. Moreover it has also not been alleged that the revisionist has not received his dues from Nagar Palika.? 10. Certainly, the proceedings under Section 138 Negotiable Instruments Act are of summary nature and has to be tried either summarily or like a summons case. I do not find any substance in the submission of learned counsel for the revisionist that under Section 251 Cr.P.C. the accused has right to get discharge. 11. I do not find any error or perversity in the impugned order. The revision is dismissed. The matter is pending since long due to multiple proceedings by the revisionist which is nothing but abuse of process of law, while the complainant is a retired teacher. The Court below is directed to conclude trial expeditiously and if possible within three months from the date of production of certified copy of this order and no unnecessary adjournments should be given.?