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2016 DIGILAW 2017 (ALL)

Rajiv Kumar Rai v. State of U. P.

2016-05-24

SUNEET KUMAR

body2016
JUDGMENT Suneet Kumar, J. – The applicant-complainant has approached this Court assailing the order dated 10.3.2016, passed by the revisional court/Additional Sessions Judge, Court no.6, Ghazipur in Criminal Revision No. 185 of 2014, whereby the summoning order passed by the learned Judicial Magistrate-II, Ghazipur in Case No. 175 of 2011 (Rajiv Kumar Rai v. Yashwant Singh) summoning the accused/opposite party no.2 in proceeding under Section 138 of N.I. Act has been set aside and the matter remanded. 2. The facts briefly is that the opposite party no.2 is having brick-kiln, the complainant supplied charcoal to the opposite party no.2, for payment of the sum due cheques were issued, upon presentation to the Bank, the cheques were returned by the bank making an endorsement that signature do not match. After lapse of statutory period of notice, the opposite party no.2 did not pay the sum, consequently, the present complaint was filed. The learned Magistrate upon recording statement of applicant under Section 200 Cr.P.C and statement of his witnesses under Section 202 summoned the opposite party no.2, aggrieved, the summoning order was assailed in revision by the opposite party no.2, the revisional court allowed the revision by the impugned order dated 10.3.2016 and remanded the matter to the Magistrate to decide afresh. 3. The sole contention of learned counsel for the applicant is that the revisional court committed an error in holding that the bank by returning the cheque endorsing that the signature does not match would not constitute an offence under Section 138 N.I. Act. Learned counsel for the applicant would submit that dishonour of cheque for the reason that signature of the drawer did not match with the specimen signature available with the Bank would attract section 138 of N.I. Act. 4. In M/s Laxmi Dyechem v. State of Gujarat and others, 2012 (13) SCC 375 , the question that fell for determination was whether dishonour of a cheque would constitute an offence only in one of the two contingencies envisaged under Section 138 of the Act. The Apex Court placing reliance on the decision rendered in Swantraj v. State of Maharashtra, (1975) 3 SCC 322 held that a narrow interpretation of Section 138 as suggested by the drawer of the cheque would defeat the legislative intent underlying the provision. The Apex Court placing reliance on the decision rendered in Swantraj v. State of Maharashtra, (1975) 3 SCC 322 held that a narrow interpretation of Section 138 as suggested by the drawer of the cheque would defeat the legislative intent underlying the provision. Reliance was placed on a decision rendered in State of Tamil Nadu v. M.K. Kandaswami, (1975) 4 SCC 745 , wherein the Supreme Court declared that while interpreting a penal provision which is also remedial in nature, a construction that would defeat its purpose or have the effect of obliterating it from the statute book should be eschewed and that if more than one constructions are possible the Court ought to choose a construction that would preserve the workability and efficacy of the statute rather than an interpretation that would render the law otiose or sterile. 5. Relying upon the aforementioned judgements, the Supreme Court repelled the argument that the provision of Section 138 of NI Act should be strictly construed. 6. In NEPC Micon Ltd. v. Magma Leasing Ltd., (1999) 4 SCC 253 where the cheques issued by the appellant-company in discharge of its liability were returned by the company with the comments ' accounts closed', it was held that dishonour on that ground was culpable under Section 138 NI Act. 7. In Modi Cements Ltd v. Kuchil Kumar Nandi, (1998) 3 SCC 249 , where similar question had arisen, the question was whether dishonour of cheque on the ground that drawer had 'stopped payment' was held punishable under Section 138 of the Act, the expression “ the amount of money.... is sufficient to honour the cheque” is a genus of which the expression 'account being closed' is a specie. (ReferM.M.T.C. Ltd. and another v. Medchi Chemicals and Pharma (P) Ltd and another, (2002) 1 SCC 234 and Goaplast (P) Ltd v. Chico Ursula D'sourza and another, (2003) 3 SCC 232 . 8. A three Judge Bench in Brangappa v. Sri Mohan, (2010) 11 SCC 441 approved the ratio in Goaplast case and held that failure of the drawer of the cheque to put up a probable defence for rebutting the presumption that arises under Section 139 would justify conviction even when the appellant drawer may have alleged that the cheque in question had been lost and was being misused by the complainant. 9. 9. In Laxmi Dyechem v. State of Gujrat, (2012) 13 SCC 375 , upon approving the ratio in the aforementioned judgments, held as follows: “We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression” amount of money........... is insufficient” appearing in Section 138 of the Act is a genus and dishonour for reasons such “ as account closed”, “ payment stopped”, referred to the drawer” are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the “ signatures do not match” or that the “ image is not found”, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act”. 10. The net effect is that dishonour on the ground that the payment has been stopped, regardless whether such stoppage is with or without notice to the drawer, and regardless whether the stoppage of payment is on the ground that the amount lying in the account was not sufficient to meet the requirement of the cheque, would attract the provisions of Section 138. 11. In view of the authoritative pronouncement of the Apex court, the reliance placed by the revisional court on the decision rendered inVinod Tanna and other v. Jahir Siddique and others, (2002) SCC (Crl) 1825 (since overruled) holding that refusal of Bank to honour the cheque for the reason that the signature does not match would not constitute an offence under Section 138 of N.I. Act is erroneous, therefore, the impugned order dated 10.3.2016 is set aside to the extent herein-above and would stand substituted by order passed herein. 12. With the above observation, the petition is allowed. Petition allowed.