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2014 DIGILAW 444 (MP)

Mustufa Pakawal v. Pratap Singh

2014-04-23

S.R.WAGHMARE

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ORDER Smt. Waghmare, J. 1. By this application under section 482 of the CrPC Mustufa has challenged the order dated 14.10.2010 passed by the Additional Sessions Judge, Ratalam in Criminal Revision No.185/2010 dismissing the revision and upholding the order of the trial Court. 2. Brief facts of the prosecution are that the complainant had filed a complaint against the petitioner for offence under section 138 of the Negotiable Instruments Act stating that the accused had purchased material for a sum of Rs.14,000/- and later also taken a loan of Rs.2,00,000/-. Thus, the total outstanding amount was Rs.2,14,000/- regarding which the accused had given a cheque. However, on its presentation the same was returned by the Bank with note indicating that the cheque could not be drawn due to condition 15 of the memo ^^lko/kku /kks[kk&/kM+h iw.kZ pSd dh jkf'k esa ifjorZu fd;k x;kA** Annexure P/3. The complainant sent a notice to the accused through his Advocate and the reply was sent refusing the transactions on false ground. Hence a complaint was filed before the Judicial Magistrate First Class and the Judicial Magistrate First Class issued notice to the accused. However, on recording statement under section 202 of the CrPC the trial Court under section 203 of the CrPC discharged the accused by order dated 21.6.2010 by holding that offence under section 138 of the Negotiable Instruments Act could not be made out. The petitioner being aggrieved filed a revision petition before the revisional Court which also uphold the finding of the trial Court and hence, the present petition under section 482 of the CrPC for setting aside both the orders. 3. Counsel for the applicant has vehemently urged the fact that when the disputed cheque was materially altered without any evidence the complaint could not have been ignored and the accused respondent could not have been discharged. Counsel urged that it was a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer and such alteration required evidence to be adduced to prove that the alteration was not made by the complainant. Counsel relied of Veera Exports v. T. Kalavathy: 2002 (1) MPWN 130 = AIR / 2002 / SC 38, (2002)1 SCC 97 . Counsel relied of Veera Exports v. T. Kalavathy: 2002 (1) MPWN 130 = AIR / 2002 / SC 38, (2002)1 SCC 97 . Secondly, counsel vehemently urged the fact that both the Courts below had erred in dismissing the complaint that reasons for dishonor of cheque are wholly irrelevant and cannot be taken into account. The Court held that once the cheque is issued by the drawer, presumption is available under section 139 of the Negotiable Instruments Act. Relying on Yogendra Kumar v. Ram Prakish Agrawal; 2007(1) MPWN 106 = 2007(2)MPLJ 510 counsel submitted that in a similar case where note of the Bank indicated the words “present again” were mentioned in the memorandum and this Court had held that the reasons for dishonor of cheque are wholly irrelevant and cannot be taken into account. Once the cheque is issued by the drawer a presumption under section 139 of the Negotiable Instruments Act must follow and despite presentation of the cheque in the bank and thereafter issuing a notice of demand, the amount remained unpaid, the drawer of the cheque can be held responsible for offence under section 138 of the N.I. Act. Relying on S. Devan, Cine Artist, No.IV v. C. Krishna Menon,”Sowparknia”& ors. 2010(2) DCR I (Kerala High Court) whereby the Court had held that mere fact that Banker returns the cheque for the reason that the signature differs is no reason for the Court to mechanically swallow that reason. Counsel urged that the reasons may be relevant and the Court has to come to a conscious conclusion that what was the actual reason for dishonour of the cheque. Finally, relied on M/s Laxmi Dyechem v. State of Gujarat & ors. 2013(2) DCR 312 counsel also stressed the fact that the apex Court had held that the Bank had returned the cheque with a remark that signature did not match and the apex Court had held that dishonour of cheque the reasons stated in the memorandum may be any reason, but even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued; would be a matter that the trial Court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration. Whereas in the instant case Counsel submitted that the Court had without investigation directly discharged the accused after following the provisions of section 203 of the CrPC. 4. Counsel for the respondent has opposed the submissions put forth by the Counsel for the applicant and has fully supported both the orders of the Courts below. Counsel urged that both the Courts below had rightly dismissed the complaint of the petitioner since the nature of the complaint itself indicated that offence under section 138 of Negotiable Instruments Act would not be made out. The revisional Court has held that the cheque was not returned by the Bank for the reasons for insufficiency of fund or any other reason, which would be the liability of the accused. The cheque was returned with a remark that warning be taken that there appeared to be enhancement in the amount and the accused respondent never had an amount of more than Rs.15,000/- in the account since right from the opening of the account till date. The accused respondent has in the reply candidly stated that he has only taken a sum of Rs.14,000/- and the figure of “2” has been added on the cheque and Rs.2,00,000/- (Rupees Two lacs. only) also appears to be added by interpolation and hence after investigation of the offence under sections 201, 202 and 203 of the CrPC the trial Court had dismissed the complaint. Counsel submitted that the petition is without merit and the same be dismissed. 5. On considering the above submissions, I find that the cheque has not been returned by the concerned Bank for the traditional reasons stated in the memorandum of Bank such as “account closed”, “stop payment” “referred to drawer” “in sufficiency of fund. The disputed cheque has been returned by the Manager of the Bank and it is not the case that the Court has come to the conclusion that fraud was played by the complainant. Hence although I find that Counsel for the applicant has rightly placed reliance M/s Laxmi Dyechem (supra) however,although the arguments appear to be attractive at the first blush they cannot be acceded to; primarily because offence under section 138 of the Act is to be considered between the complainant and the accused. Hence although I find that Counsel for the applicant has rightly placed reliance M/s Laxmi Dyechem (supra) however,although the arguments appear to be attractive at the first blush they cannot be acceded to; primarily because offence under section 138 of the Act is to be considered between the complainant and the accused. The accused has not committed any violation under section 138 of the Act and no fruitful purpose would be served in remanding the case since it cannot result in conviction of the accused respondent. Moreover collusion, fraud etc has not been alleged by the complainant in the complaint. The Revisional Court has considered the evidence in detail. The material alteration in the cheque are quite evident on the face of the record. On perusing the disputed cheque it appears to be cancelled by the Bank Officer and it is very obvious on merely seeing the cheque. The tampering has not been done by the accused and so also the refusal to pay in not as an ingredient as per section 138 of the Act. Similarly there is a reply by the accused that the accused had never demanded Rs.2,00,000/- at any point of time from the complainant and the cheque had been given for Rs.14,000/- only. 6. Under these circumstances there has been a rebuttal under section 139 of the Negotiable Instruments Act by the accused and considering the fact that on remand no fruitful purpose would be served. Moreover, the complainant had been examined under sections 200 and 202 of the CrPC and in this regard also the trial Court cannot be faulted. Only conducting a futile exercise in examining the Bank Officer would serve no fruitful purpose and cannot result in a conviction of the accused respondent for offence under section 138 of the Negotiable Instruments Act. And in this light although the petition is very ably argued and properly argued by Counsel Ku. Nishat Kazi the petition cannot be allowed. Both the orders of the trial Court and the revisional Court are in accordance with the provisions of law and do not call for any interference. 7. The petition is, therefore, dismissed as being without merit.