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2015 DIGILAW 720 (MP)

Harish Kulshrestha v. Vikram Sharma

2015-07-13

S.K.PALO

body2015
ORDER : S.K. PALO, J. 1. This petition under Section 482 of Cr.P.C. has been filed to recall the order dated 07.01.2009 passed in M.Cr.C. No. 616/2009 by this Court. The facts just necessary to adjudicate the present petition are that a cheque of Rs. 2,97,000/- was issued by respondent/accused Vikram Sharma in favour of the complainant/petitioner which was submitted for collection and upon presentation the said cheque was dishonoured. It was alleged that, in spite of the notice of demand, the amount was not paid, hence, the respondent accused Vikram Sharma has committed an offence which is punishable under Section 138 of the Negotiable Instruments Act (which shall be referred hereinafter as an "NI Act"). 2. A complaint case was filed by petitioner/complainant Harish Kulshreshtha, to prosecute the accused/respondent under Section 138 of the Act. After taking cognizance in the matter, the learned Trial Court framed charge against respondent/accused Vikram Sharma under Section 138 of the NI Act by the learned Special Judge, Morena, on 16.04.2007. Subsequently, on 25.05.2007, an application was moved by the respondent/accused Vikram Sharma before the Trial Court by which the respondent claimed that the said cheque was said to have dishonoured because of non-availability of fund but it was dishonoured due to a different reason. As no witnesses have been examined so far the case has been fixed for recording of evidence. The plea of the accused Vikram Sharma in the charge be amended suitably. 3. This application was opposed by the petitioner/complainant Harish Kulshrestha. The learned Trial Court vide order dated 15.06.2007 discussed the matter in detail and held that the application deserves to be dismissed as there was no necessity to amend the plea written on 16.06.2007. Learned trial Court has held that on prima facie it was found that the cheque was dishonoured by State Bank of Indore, Branch Kampoo, Gwalior, for "out of rate" which is interpreted as "insufficient available of fund." The 'cheque return memo' showing "out of date" is not required to be written as "out of date" is written in column No. 16. Therefore, it is actually "out of date" which means out of estimated amount or value, meaning thereby insufficient of fund. 4. The order dated 15.06.2007 was under challenge in Criminal Revision No. 616/2007 by the accused/respondent. This Court allowed the revision and set aside the impugned order. 5. Therefore, it is actually "out of date" which means out of estimated amount or value, meaning thereby insufficient of fund. 4. The order dated 15.06.2007 was under challenge in Criminal Revision No. 616/2007 by the accused/respondent. This Court allowed the revision and set aside the impugned order. 5. This Court vide order dated 2.1.2009 while deciding the revision has opined that, "From perusal of the record it is evident that the cheque is dated 10/04/05 while the cheque was returned by the State Bank of Indore, Branch Gwalior on 13/10/05 and reason has been mentioned in the memorandum which is annexed to the petition as Annexure P/1 is cheque 'out of date'. By no stretch of imagination it can be read as cheque of rate. As admittedly, in this case the cheque was not presented before the drawer's bank within the statutory period of six months, the Criminal Court had no jurisdiction to issue the process against the petitioner. The impugned order being contrary to law is thus not sustainable. The petition is accordingly allowed and the impugned order is set-aside". 6. The present petition has been filed by the complainant/petitioner in this background with the aforesaid prayer stating that the order dated 07.01.2009 has been passed on a wrong notion and not in accordance with the record. It is further claimed that the revision was presented for amending the plea in the charge whereas no request was made to discharge the petitioner. 7. During the course of arguments counsel for the petitioner strenuously argued that the disputed cheque was dated 10.04.2005 and the drawing bank was State Bank of Indore, Kampoo Branch, Gwalior. The cheque was produced for collection within the prescribed period i.e. six months. The complainant/petitioner produced the cheque with Oriental Bank of Commerce on 08.10.2005 within the prescribed time. Subsequently, Oriental Bank of Commerce sent the cheque to the drawer bank i.e. State Bank of Indore Branch, Kampoo, Gwalior, for collection and on 13.10.2005 the drawee bank State Bank of Indore returned the unpaid cheque with the endorsement that cheque "out of rate". Reliance has been placed by the counsel for the petitioner in Kushalbhai Ratanbhai Rohit & Ors Vs. Reliance has been placed by the counsel for the petitioner in Kushalbhai Ratanbhai Rohit & Ors Vs. The State of Gujarat, decided in Special Leave Petition (Cri.) No. 453 of 2014, in which the Hon'ble Supreme Court has held that a Judge's responsibility is very heavy, particularly in a case where a man's life and liberty hang upon his decision - Nothing can be left to chance or doubt or conjecture - Thus, Judge can recall or review his earlier judgment which is yet to be signed. 7A. It is pertinent to note that the words used are "yet to be signed". 8. Per contra, learned counsel for the respondent/accused vehemently argued that the particulars of offence was explained on 16.04.2009 and the accused could not explain the things hence filed application for correction in the plea, it was not because of "insufficiency of the fund", the cheque was dishonoured but, it was because of other reasons. When this request was refused by the Court vide order dated 15.06.2007, the accused/respondent filed the revision which was registered as MCRC 616/2007. While deciding the matter, this Court held that the cheque was not presented before the drawee Bank within the statutory period of six months. This view of the Court is fortified by the decisions rendered in Amit Duney Vs. Arvind Dubey reported in 2012(3) M.P.L.J. 217, Hari Singh Mann Vs. Harbhajan Singh Bajwa and others, reported in AIR 2001 S.C. 43 and Shri Ishar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd., reported in (2001) 3 SCC 609 . 9. The questioned cheque was not produced before the drawee bank within six months. The complainant has not observed the legislative intent. Therefore, there is no criminal liability of the drawyee. 10. In Shri Ishar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd., (2001) 3 SCC 609 , the Hon'ble Supreme Court has held that, "Negotiable Instruments Act, 1881 - Ss. 138, 3 and 72 - Expression "the bank", occurring in proviso (a) to S. 130 - Meaning - Held, means the drawee bank and not the collecting bank of payee - Hence, in order to attract the criminal liability of the drawer the cheque must be presented to the drawee bank within the statutory period either personally or through a collecting bank." 11. Statutory time limit for presenting the cheque to the bank is six months, the "bank" as explained by the Hon'ble Supreme Court is the "drawyee bank" and not the "collecting bank". It is further made clear that the criminal liability of the drawer can be fasten only when the cheque is presented to the drawer bank within the statutory period either personally or through a collecting bank. The drawer bank sent the "cheque return memo" on 13.10.2005 does not show that the cheque was presented to the drawee bank on or before 09.10.2005. 12. Therefore, the observation made by this Court in the order dated 07.01.2009 cannot be held to be a stray remark. 13. Besides the above, Hon'ble the Supreme Court in R. Rajeshwri Vs. H.N. Jagadish reported in (2008) 2 SCC (Cri) 186 has held that, "B. Criminal Procedure Code, 1973 - Ss.362 and 482 - Bar under S.362--Exercise of jurisdiction under S.482, when warranted - In view of specific bar created under S.362 in regard to exercise of jurisdiction of High Court to review its own order, held, ordinarily exercise of jurisdiction under S.482 would be unwarranted-Only in some rare cases, High Court may do so where a judgment has been obtained from it by practising fraud--Herein, such a case has not been made out". 14. Further more Hon'ble the Apex Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa and others, reported in AIR 2001 S.C. 43 has opined that, "Criminal P.C. (2 of 1974), Ss. 482, 362 - Review of judgment/order - Is not permissible under Code - Court cannot under cloak of S. 482 exercise such power - Practice of filing miscellaneous petitions after disposal of main case - is unwarranted". 15. In this view of the matter there is no provision in the Code of Criminal Procedure authorizing the High Court to review its orders passed in exercise of its revisional jurisdiction. Such power cannot be exercised with an aid or under the clock of Section 482 of Code of Criminal Procedure. Section 362 of Code maintain that no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. Such power cannot be exercised with an aid or under the clock of Section 482 of Code of Criminal Procedure. Section 362 of Code maintain that no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. Once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes "functus officio" and dis-entitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. 16. As that may be, the order dated 07.01.2009 cannot be altered or recalled except to the extent of correcting a clerical or arithmetical error. In this premises, the present petition sans merit and is therefore dismissed.