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2014 DIGILAW 2578 (ALL)

Alok Varshney v. State of U. P.

2014-08-22

RANJANA PANDYA

body2014
JUDGMENT Mrs. Ranjana Pandya,J. This revision has been preferred against the order dated 05.07.2014, passed by learned Judicial Magistrate, Court No.2, Aligarh, in complaint case no. 155 of 2014, under Section 138 N.I. Act, Police Station Bannadevi, District Aligarh whereby the accused were summoned under Section 138 N.I. Act. 2. Brief facts are that the accused Alok Varshney is a distant relative of the friend of the complainant who is director in the firm M/s Acetel Technologies Private Limited and the companion of Alok Varshney is also director in the aforesaid firm. The complainant is known to Amit Srivastava through Alok Varshney. In July, 2012, the accused Alok Varshney and co-accused Amit Srivastava said that they would make the complainant, Director in the firm if he gave Rs. 7,50,000/-. Both the accused persuaded the complainant to agree on the proposal so that he gave him Rs. 7,50,000/- to the accused through consoled the complainant that he would become director in some days. When the complainant could not deputed as Director, he demanded his money back. Then it came to his knowledge that both the accused have also taken Rs. 5,00,000/- from his brother Praveen Kumar Varshney. On 17.05.2013, the complainant along with his brother Praveen Kumar Varshney went to the house of the accused and demanded money back. They said that they did not have money and gave a cheque no. 109003 dated 20.12.2013 for Rs. 7,50,000/- and requested the complainant not to deposit the cheque and said that if he deposits the cheque in March, 2014, the cheque will be cashed. On 13.03.2014, the complainant deposited the cheque in his bank but it was "stop payment". Notice was given to the accused but they did not take care. 3. Feeling aggrieved a complaint was filed. In support of the complaint sine documents were also filed. The statement of the complainant was recorded under Section 200 Cr.P.C. and under Section 202 Cr.P.C. the original cheque, slip of the bank, notice of registry and some other documents was filed. After perusal of which, the trial court has passed the summoning order. 4. Feeling aggrieved, the accused have come up in this revision. 5. I have learned the learned counsel for the revisionists, learned A.G.A. and perused the material on record. 6. After perusal of which, the trial court has passed the summoning order. 4. Feeling aggrieved, the accused have come up in this revision. 5. I have learned the learned counsel for the revisionists, learned A.G.A. and perused the material on record. 6. Counsel for the revisionists has argued that prior to the cheque being presented in the bank they have informed the bank that his cheque was lost and thus, "stop payment", which does not amount to an offence as laid down by the Apex Court. In this regard learned counsel for the revisionists has placed reliance in (2009) 2 SCC (Cri) 936 (Raj Kumar Khurana Vs. State (NCT of Delhi) and Anr.) in which it has been held that: - "10. Section 138 of the Act reads as under: "138 - Dishonour of cheque for insufficiency, etc. In this regard learned counsel for the revisionists has placed reliance in (2009) 2 SCC (Cri) 936 (Raj Kumar Khurana Vs. State (NCT of Delhi) and Anr.) in which it has been held that: - "10. Section 138 of the Act reads 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 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. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." 7. A bare perusal of the aforementioned provision would clearly go to show that by reason thereof a legal fiction has been created. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." 7. A bare perusal of the aforementioned provision would clearly go to show that by reason thereof a legal fiction has been created. A legal fiction, as is well known, although is required to be given full effect, has its own limitations. It cannot be taken recourse to for any purpose other than the one mentioned in the statute itself. In State of A.P. And Anr. v. A.P. Pensioners' Assn. this Court held: "30....In other words, all the consequences ordinarily flowing from a rule would be given effect to if the rule otherwise does not limit the operation thereof. If the rule itself provides a limitation on its operation, the consequences flowing from the legal fiction have to be understood in the light of the limitations prescribed. Thus, it is not possible to construe the legal fiction as simply as suggested by Mr. Lalit." 11. Section 138 of the Act moreover provides for a penal provision. A penal provision created by reason of a legal fiction must receive strict construction. (See R. Kalyani v. Janak C. Mehta and DCM Financial Services Ltd. v. J.N. Sareen). Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such non-payment may either be: (i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank. Before a proceeding thereunder is initiated, all the legal requirements therefor must be complied with. The court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with. 12. The parameters for invoking the provisions of Section 138 of the Act, thus, being limited, we are of the opinion that refusal on the part of the bank to honour the cheque would not bring the matter within the mischief of the provisions of Section 138 of the Act." 8. It is well settled law that at this stage of summoning, learned lower court had only to see whether there was sufficient ground to proceed or not. It is well settled law that at this stage of summoning, learned lower court had only to see whether there was sufficient ground to proceed or not. The defence of the accused cannot be look into at that point of time. The summoning order is based on evidence on record and it cannot be set aside or quashed. However, the revisionists are at liberty to move a discharge application at the proper time and learned lower court will look into the discharge application and will pass an order on merits on the discharge application. 9. With these observations, the revision is dismissed.