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2014 DIGILAW 752 (RAJ)

Lavleena @ Pooja Kahndiya v. Bhupinder Kaur

2014-03-21

R.S.CHAUHAN

body2014
Hon'ble CHAUHAN, J.—The petitioner has challenged the order dated 2.8.2010 passed by Additional Chief Judicial Magistrate No. 11, Jaipur Metropolitan, Jaipur, whereby the learned Magistrate had taken cognizance against the petitioner for offence under Sections 138 Negotiable Instruments Act, 1988 (the `Act' for short). 2. The Brief facts of the case are that according to complainant-respondent, Smt. Bhupinder Kaur, the accused petitioner-Smt. Lavleena @ Pooja Kahndiya- petitioner-Smt. Lavleena @ Pooja Kahndiya-had borrowed Rs. 5 lacs from her. In order to repay the said loan amount, Smt. Lavleena had issued a cheque, namely cheque No. 1085542 dated 30th April, 2010 in favour of the complainant-respondent. However, when the cheque was submitted for encashment, it was returned with the endorsement that "the account is closed". Hence, the cheque was dishonored. Subsequently, the complainant -respondent filed a complaint before the learned Magistrate for offence under Section 138 of the Act. By order dated 2nd August, 2010, the learned Magistrate took cognizance against the petitioner. Hence, this petition before this Court. 3. Mr. Anil Upman, the learned counsel for the petitioner has raised the following contentions before this Court:- 4. Firstly, Section 138 Negotiable Instruments Act deals with a cheque drawn by a person "on an account maintained by him." However, the said provision does not deal with a cheque drawn by a person "on an account which has already been closed by the said person." In the present case, the account was already closed. Hence, the dishonour of cheque would not bring the case within the ambit of Section 138 of the Act. In order to buttress this contention, the learned counsel has relied upon the case of Raj Kumar Khurana vs. State of (NCT of Delhi) & Anr. (2009 Cr.LR. (SC) 414). Secondly, the learned Magistrate has passed the cognizance order in a mechanical manner. For, the order is a proforma order where certain lines have been inserted in writing, while the rest of the order has been typed. Thus, according to the learned counsel, it is a cyclostyled order. Therefore, according to him, the order has been passed without application of mind. Hence, the order deserves to be interfered with. 6. Heard learned counsel for the petitioner and perused the impugned order. Section 138 of the Act is as under:- "138. Thus, according to the learned counsel, it is a cyclostyled order. Therefore, according to him, the order has been passed without application of mind. Hence, the order deserves to be interfered with. 6. Heard learned counsel for the petitioner and perused the impugned order. Section 138 of the Act is as under:- "138. Dishonour, of cheque for insufficiency, etc., of funds in the accounts.-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 hav 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." 7. The rule of literal interpretation is called the Golden Rule. The rule of literal interpretation is called the Golden Rule. According to this rule, if there is no ambiguity in a provision, if it is clear in its scope and ambit, the Court should go by the plain and grammatical meaning of the words. According to this rule, the Courts should not alter or amend the words of the provisions. 8. However, at times the application of this rule may defeat the very intention of the legislature; the law may miss its purpose. Therefore, the Court may fail to interpret the law in its proper spirit: it may implement the law in a manner defeating the very purpose of the law. Since one of the cardinal functions of the Court is to interpret the law, there are other rules of interpretation, which the Courts have evolved while interpreting the law. 9. Bennion, a great jurist in this book Statutory Interpretation (4th Edition 2002, Page 810 Section 304), deals with `nature of purposive construction.' According to him "a purposive construction of an enactment is one which gives effect to the legislative purpose by- (a) following the literal meaning of the enactment where the meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)." He further continues to observe "I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included init. (Kammins Ballroom Co. Ltd. vs. Zenith Investments (Torquay) Ltd. (1970) 2 All ER 871, (1971) AC 850, (1970) 3 WLR 287) provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. (Kammins Ballroom Co. Ltd. vs. Zenith Investments (Torquay) Ltd. (1970) 2 All ER 871, (1971) AC 850, (1970) 3 WLR 287) provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed." 10. In the case of Prenn vs. Simmonds (1971 (3) All E.R. 237), Lord Wilberforce had opined that while interpreting statutes, judges ought to be a more concerned with the "colour", the "content" and the "context" of such statutes. According to him, "the law is not to be left behind in some island of literal interpretation, but is to inquire beyond the language, unisolated from the matrix of the facts in which they are said; the law is not to be interpreted purely on internal Linguistic considerations." 11. In the case of Seaford Court Estate Ltd. vs. Asher (1949) 2 All E.R. 155 (CA) Lord Derning had opined as under:- "The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsman of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. This is where the draftsman of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which give rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give `force and life' to the intention of the legislature... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in this texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven but he can and should iron out the creases." 12. In the case of Surendra Kumar Verma vs. Central Government Tribunal Cum Labour Court, AIR 1981 SC 422 , the Apex Court had opined "where the legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions." 13. Thus, in interpreting a provision, the Court are required to consider the purpose of the law for which it was enacted. In order to give affect to the purpose of the law, perforce the Courts are required to move beyond the "literal interpretation of the law." 14. A bare perusal of Section 138 of the Act reveals that it covers the situations of either insufficiency of the amount in the account to honour the cheque, or that the cheque exceeds the amount arranged to be paid from that account by an agreement made with that bank. Thus, it basically deals with dishonour of a cheque on the ground of insufficiency of fund. 15. Thus, it basically deals with dishonour of a cheque on the ground of insufficiency of fund. 15. In the case of Electronics Trade & Technology Development Corpn. Ltd. Securderabad vs. Indian Technologists & Engineers (Electronics) (P) Ltd. and Another (1996) 2 SCC 739 ), the Apex Court was faced that the issue whether a case where direction has been issued by the drawer for stopping the payment of the cheque amount to the payee or the holder in due course, would fall within the ambit of Section 138 of the Act or not? The Apex Court opined as under:- "The object of bringing Section 138 on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Despite Civil remedy, Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly. It is seen that once the cheque has been drawn and issued to the payee and the payee has presented the cheque and thereafter, if any instructions are issued to the Bank for non-payment and the cheque is returned to the payee with such an endorsement, it amounts to dishonur of cheque and it comes within the meaning of Section 138. Suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the Bank for payment and when it is returned on instructions, Section 138 dos not get attracted. Under these circumstances, since the accused has not made the payment within 15 days from the date of the receipt of the notice issued by the payee or the holder in due course, the dishonest intention is inferable from those facts. Accordingly, the ingredients as contained in Section 138 have been prime facie made out in the complaint." 16. Under these circumstances, since the accused has not made the payment within 15 days from the date of the receipt of the notice issued by the payee or the holder in due course, the dishonest intention is inferable from those facts. Accordingly, the ingredients as contained in Section 138 have been prime facie made out in the complaint." 16. Hence, in the above noted case, the Apex Court had enlarged the scope of Section 138 of the Act by including even the cases of "stop payment", although the words "stop payment" do not occur in the said provision. Thus, in order to give effect to the intention of the Parliament while enlarging the scope of Section 138 of the Act, the Hon'ble Supreme Court had applied, the "purposive rule of interpretation." 17. One cannot overlook the fact that the object of Section 138 of the Act is to inculcate faith in the efficiency of banking operations and credibility in transacting business on negotiable instruments. The mischief of this provision to try to get rid of and to prevent people from cheating the payee or the holder in due course by adopting dubious means for preventing the encashment of the cheque. Applying the three tests laid down by Bennion, mentioned above, it is obvious that the Parliament has inadvertently overlooked the fact that an unscrupulous person could still commit the mischief by closing the account. Moreover had the attention of the Parliament been drawn to omission that the Section does not deal with such an eventuality, naturally the Parliament would have plugged in the lacuna. Since these three tests are easily passed, this court cannot fold its hands and complain about the draftsman. This Court must rise to the occasion and read the words inadvertently omitted by the Parliament. Thus, this Court holds that in case the account were to be closed, either before or after giving of the cheque by the drawer, such a situation would necessarily fall within the ambit and scope of Section 138 of the Act. 18. In case Section 138 of the Act were not interpreted in such a manner, it would leave an escape route for the unscrupulous people for cheating the payee or the holder in due course. A literal interpretation of the provision would, therefore, defeat the very purpose of the law. 18. In case Section 138 of the Act were not interpreted in such a manner, it would leave an escape route for the unscrupulous people for cheating the payee or the holder in due course. A literal interpretation of the provision would, therefore, defeat the very purpose of the law. Hence, the contention raised by the learned counsel that the cases of "account closed" do not fall within Section 138 of the Act is clearly unacceptable. 19. Learned counsel has relied upon the case of Raj Kumar Khurana (supra). However, the said judgment is inapplicable to the present case as it is distinguishable on factual matrix itself. In the case of Raj Kumar Khurana, the appellant had kept two blank cheques along with some stamp papers in his office. Allegedly the two blank cheques were stolen from his office. Immediately, the appellant had informed the bank, and had lodged a FIR with regard to the theft of the two cheques. Subsequently, the blank cheques were allegedly filled up on 24th June, 2001 and were presented for encashment before the Bank. However, the bank returned the cheque with a remark "said cheque porported lost by the drawer." Therefore, in these circumstances, the Apex Court was of the opinion that such a situation would not bring the case within the ambit of Section 138 of the Act. 20. It is obvious that in the case of Raj Kumar Khurana, the intention of the appellant was not to cheat as he had innocently lost the cheque. In fact the cheques were lost only because they had been stolen. Hence, the Apex Court had concluded that such a case would not fall within the ambit of Section 138 of the Act, where the person has innocently lost the cheque. However, in the present case, according to the complainant, the petitioner had given her a cheque of Rs. 5 lacs in order to repay the loan. But after having given the cheque, allegedly the petitioner had closed the account. Thus, the cheque was dishonoured on the ground that the account was closed. The fact that the account was closed, subsequent to giving of the cheque, indicates the petitioner's intention not to repay the loan. Her intention to deprive the complainant-respondent of her rightful dues is prima facie apparent. Hence, the case of Raj Kumar Khurana does not come to the rescue of the petitioner. 21. The fact that the account was closed, subsequent to giving of the cheque, indicates the petitioner's intention not to repay the loan. Her intention to deprive the complainant-respondent of her rightful dues is prima facie apparent. Hence, the case of Raj Kumar Khurana does not come to the rescue of the petitioner. 21. A bare perusal of the order dated 2.8.2010 does not reveal that part of the order has been typed and part of the order has been written by hand. It also reveals that there are blank spaces left in the order which were subsequently filled up by hand. Thus, it does appear that the order is a cyclostyled one. But merely because the order is cyclostyled one, it cannot be inferred that the said order has been passed either mechanically, or suffers from non-application of mind. Since the perusal of the complainant does reveal the existence of offence under Section 138of the Act, on a prima-facie basis, the learned Magistrate was justified in passing the order dated 2.8.2010. 22. However, this Court does not appreciate the practice of the learned Magistrate or of other Judicial Officers in passing a cyclostyled order. Therefore, Judicial Officers are directed to be careful while passing a cognizance order. For, such cyclostyled orders give a feeling to the people at large that justice is not being done to them. Since the cardinal principle of law is that justice should not only be done, but should also appear to be done, the Judicial Officers should desist from passing such a cyclostyled order. 23. For the reasons stated above, this Court does not find any merit in this petitioner. It is, hereby, dismissed. Stay application is also dismissed. 24. The Registrar General is directed to bring this judgment to the notice of all the judicial Officers presiding over the Courts dealing with the N.I. Act.