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2014 DIGILAW 2772 (ALL)

Achche Lal Yadav v. State of U. P

2014-09-08

VISHNU CHANDRA GUPTA

body2014
JUDGMENT Vishnu Chandra Gupta,J. 1. Heard Shri Jagrit Sharma, learned counsel for the petitioner, Shri Sudeep Kumar, learned counsel for the complainant and the learned AGA. 2. By means of the present petition under section 482 Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), the petitioner has prayed for quashing the entire proceeding of Complaint Case No. 1991 of 2012(earlier Complaint Case No.1217 of 2011), Sabyasachi Sikdar Vs. Achche Lal Yadav, under section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I. Act") pending in the court of Additional Chief Judicial Magistrate-IV, Lucknow and also the orders dated 9.8.2012 and 2.11.2013 passed by the Additional Chief Judicial Magistrate-I, Court No. 25, Lucknow, whereby the petitioner has been summoned to face trial and issue of process under Section 138 of the N.I. Act., P.S. Vikas Nagar, District Lucknow. 3. Facts relevant for deciding this petition are that opposite party no. 2 Sabyasachi Sikdar being Director of M/s Cropaid Marketing Private Ltd. filed aforesaid complaint case under Section 138 of N.I. Act against petitioner Achche Lal Yadav, who is Proprietor of firm "M/s Natraj Fertilizer" alleging therein that opposite party no.2 issued a cheque amounting to Rs. 1,62,838/- on 9.5.2011 having cheque no.041157 of Union Bank of India, Chandawak, District Jaunpur in favour of the company "Cropaid Marketing Pvt. Ltd" towards full and final payment of the outstanding amount along with interest. The cheque in question was presented by opposite party no.2 for clearing in the State Bank of India, Vikas Nagar, Lucknow, but the same was dis-honoured by the Union Bank of India, Chandawak, Jaunpur on account of insufficient funds. The communication has been made by the State Bank of India, Vikas Nagar, Lucknow vide its memo letter dated 10.5.2011. A registered legal notice was issued to the petitioner by the opposite party no. 2 through his counsel on 6.6.2011 demanding the amount under the cheque within fifteen days. Telegram was also sent on 7.6.2011 to the petitioner demanding the payment under the cheque in question. But inspite of it, the amount of cheque has not been paid by the petitioner to the opposite party no.2. Consequently, the complainant has filed a complaint under section 138 read with section 142 of the N.I. Act on 23.7.2013 before the learned Additional Chief Judicial Magistrate-III, Court No 27, Lucknow along with an affidavit annexing therewith relevant documents. 4. But inspite of it, the amount of cheque has not been paid by the petitioner to the opposite party no.2. Consequently, the complainant has filed a complaint under section 138 read with section 142 of the N.I. Act on 23.7.2013 before the learned Additional Chief Judicial Magistrate-III, Court No 27, Lucknow along with an affidavit annexing therewith relevant documents. 4. The learned Magistrate after considering the allegations of complaint, affidavit and documents filed passed the impugned order summoning the accused applicant to face the trial under section 138 of NI Act fixing the date of appearance on 24.9.2011. Aggrieved by the aforesaid order, the petitioner has filed the present petition on the following grounds: - (I). That the impugned orders are not legally sustainable due to non compliance of amended provisions of section 202 Cr.P.C. as held in the judgment of Apex Court rendered in Petition (s) for Special Leave to Appeal (Crl.) No. (s) 9098 of 2012, National Bank of Oman Vs. Barakara Adbul Aziz and another. (II). That cheque in question has been issued in the name of Company "Cropaid Marketing Pvt Ltd.". The complaint has been signed and presented by opposite party no. 2, Sabyasachi Sikdar, who is neither payee or holder in due course of cheque nor is a person empowered by a resolution of Board of Directors to file complaint. (III). That complaint filed by the opposite party no. 2 is barred by sections 9, 141 and 142 (a) N.I. Act as held in the judgment of Apex Court delivered in Criminal Appeal No.838 of 2008 Aneeta Hada Vs. M/s Godfather Travels and Tours Pvt. Ltd., with Criminal Appeal No.842 of 2008, Anil Hada Vs. M/s Godfather Travels and Tours Pvt. Ltd., decided on 27.4.2012. (IV). That opposite party no.2 has not filed any receipt of registered post of the postal department along with the complaint or the list of documents to substantiate the fact that the legal notice in writing was ever sent to the petitioner on 6.6.2011, which is a statutory requirement to the initiation of the criminal proceeding under the NI Act. (V). That the statement recorded under section 202 Cr.P.C. in the form of affidavit, is prior to the date of filing of the complaint i.e. 22.7.2011. As such the affidavit prepared and verified prior to the filing of the complaint is not admissible under section 202 Cr.P.C. (VI). (V). That the statement recorded under section 202 Cr.P.C. in the form of affidavit, is prior to the date of filing of the complaint i.e. 22.7.2011. As such the affidavit prepared and verified prior to the filing of the complaint is not admissible under section 202 Cr.P.C. (VI). That the cheque in question has not been issued for discharge of legal liability. (VII). The complaint is based on mala fide. 5. No counter affidavit has been filed by the opposite party no.2, but he orally opposed the argument advanced by the petitioner. However, learned counsel for the opposite party no.2 has relied upon the judgment of Apex Court in M.M.T.C. Ltd. and another Vs. Medhcl Chemicals and Pharma (P) Ltd. and another reported in (2002) 1 SCC 234 and submitted that the opposite party no.2 has been duly authorized to file a complaint on behalf of the company and if authorization is not filed along with the complaint, the mistake can be rectified even at the subsequent stage of the proceedings. He also submitted on the strength of this judgment that the question of discharge of debt or liability by issuing a cheque is a question of fact, existing the non existence of any debt or liability is on the accused to be discharged at the trial and prior to that complaint cannot be quashed by the High Court while exercising the powers under section 482 Cr.P.C. It is further submitted that opposite party no. 2 is duly authorized to file a complaint by resolution of Board of Directors' company. Therefore, the compliance of section 142 Cr.P.C. is there. The complainant being Director of the Company is a holder in due course within the meaning of section 9 of NI Act. In the present case the case law cited by the petitioner in Aneeta Hada's case (Supra) is in respect of section 141of NI Act and not in respect of section 142 of NI Act. The petitioner is the proprietor i.e. owner of business style as "Natraj Fertilizer". Therefore, section 141 of NI Ac is not attacked in this case. Consequently, Aneeta Hada's case (Supra) is not extending any help to the petitioner. The petitioner is the proprietor i.e. owner of business style as "Natraj Fertilizer". Therefore, section 141 of NI Ac is not attacked in this case. Consequently, Aneeta Hada's case (Supra) is not extending any help to the petitioner. It is further submitted that in view of section 145 of NI Act, the evidence of the complainant in respect of the offence of NI Act can be given by way of affidavit in any inquiry, trial or other proceeding. The court has given an authority if thinks fit on the application of the prosecution or the accused to summon and examine any person giving evidence on affidavit as to the fact contained therein. Therefore, the affidavit given as evidence during inquiry annexed with the complaint is at the most could be said an irregularity, which does not go to the root of the case. 6. The court postponed the issuance of process on the date of presentation of complaint filed along with affidavit. The learned Magistrate after considering the material on record and satisfying with the inquiry as contemplated under sections 200 and 202 Cr.P.C. issued process against the accused on 9.8.2011. The offence under section 138 NI Act is purely a technical offence. For constituting an offence mostly under section 138 of NI Act the documentary evidence is required. Thus, the case relied upon by the petitioner in National Bank of Oman (Supra) is not at all applicable to the present case because the amendment incorporated under section 202 Cr.P.C. with intend to prevent the harassment of accused person leaving beyond the jurisdiction of the court. 7. Considering the submissions made by the learned counsel for the parties and going through the record of the case, this Court is of the view that grounds of attack mentioned hereinabove against the order of summoning are not sustainable for the following reasons: - (1). The offence under section 138 of NI Act is normally based on the documentary evidence i.e. the cheque in question, the memo issued by the bank showing ground of dis-honour of cheque, notice of the demand and authority to present the petition. NI Act is a special Act having special provisions regarding presumption under section 118 and 139 of N.I. Act which relevant for deciding the proceedings under section 138 of NI Act. (2). NI Act is a special Act having special provisions regarding presumption under section 118 and 139 of N.I. Act which relevant for deciding the proceedings under section 138 of NI Act. (2). Normally, cause of action in regard to complaint under Section 135 of N.I. Act is depend on the basis of document. Therefore, if if a complaint is filed involving a person residing outside the jurisdiction of the court, it shall not be deemed to have been falsely implicated like any other case, in which the evidence produced is oral. In this case, the learned Magistrate after going through the documentary evidence produced during inquiry took a decision to summon the accused. Therefore, it cannot be said that this case is based on the false allegation. (3). In the present case, the complainant is a corporate body. It is not denied that opposite party no.2, Sabyasachi Sikdar is the Director of M/s Cropaid Marketing Pvt.Ltd. The company is the juristic person. It is true that Director is an employer of the company but if he is authorized by the resolution of the Board of the Directors to initiate the proceedings, it will be the decision of the company and not of the Directors. It is true that no authorization to file the complaint on behalf of the company is available. This defect is curable and the same may be cured if authorization is filed during the proceedings before trial court as held by the Apex Court in MMTC's case (Supra). (4) The Director of company represents the company and holds the property on behalf of the company, therefore, he cannot be categorized as a person not competent to hold a cheque on behalf of the company, and as such, he shall be the holder in due course of the cheque in question within the meaning of section 9 of NI Act. (5). In the present case, the complaint has been filed against the proprietor of the company "Natraj Fertilizer", who is owner of the firm and business of Natraj Fertilizer. Therefore, section 141 will not attack in this case. The impleadment of firm Natraj Fertilizer thus, is not at all necessary. As such, the case of Aneeta Hada's (Supra) is not extending any help to the petitioner. Therefore, section 141 will not attack in this case. The impleadment of firm Natraj Fertilizer thus, is not at all necessary. As such, the case of Aneeta Hada's (Supra) is not extending any help to the petitioner. To establish non existence of any liability of payment, the burden lies on the shoulder of the accused, has to discharge in view of section 139 of NI Act during the course of proceeding. Existence of mala fidies of opposite party no.2 in launching the prosecution has not been brought on record. (6). All necessary ingredients of section 138 of NI Act, prima facie, exist. The mere non filing of the postal receipt of notice is not a ground to quash the proceedings of the complaint Section 482 Cr.P.C. 8. In view of the above, this petition sans merit and is accordingly dismissed.