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2017 DIGILAW 1052 (JK)

Suhail Ahmad Lone v. Sameer Ahmad Dar

2017-12-07

M.K.HANJURA

body2017
JUDGMENT : M.K. Hanjura, J. 1. In this petition under Section 561-A Cr.P.C., the petitioner has invoked the jurisdiction of this Court in quashing the criminal complaint titled "Sameer Ahmad Dar v. Suhail Ahmad" (File No. 72/Alif), sub-judice in the court of learned Chief Judicial Magistrate, Anantnag, and the impugned orders including the order of taking cognizance, on the grounds inter alia, that the petitioner was some time back posted as Manager, Jammu and Kashmir Bank Ltd. Branch Office, Lassipora Pulwama, and in the normal course of business a cheque dated 28.12.2015 issued by "S.F. Traders" of which the respondent is the proprietor, was received by the Bank. The cheque bore the number 710831. It was a bearer cheque for an amount of Rs. 14.75 lacs. The cheque was payable to "S.A. Gold Ispat Pvt. Ltd.". When the cheque was received by the Bank on 28.12.2015 it had been endorsed by the payee to another concern called "Mir Steel Rolling Mills Pvt. Ltd)". The Bank credited this amount of Rs. 14.75 lacs into the account of "Mir Steel Rolling Mill Pvt. Ltd." (CC-74) on the same day i.e. 28.12.2015. "Mir Steel rolling Mill Pvt. Ltd." maintained an account in the Branch of which the petitioner was the Manager at the relevant point of time. The petitioner has proceeded to state that the banking system is computerized. It so happened that inadvertently and by a bona fide mistake the cheque number fed in the computer system read as "710835" instead of "710831" but the amount was correctly credited in the account of "Mir Steel Rolling Mill Pvt. Ltd." in whose favour the cheque had been endorsed. This mistake which had crept in did not come to the notice of the Bank till July, 2016. "M/s S.F. Traders", the respondent herein issued cheque No. 710835 for Rs. 1.00 lac in favour of the J & K Construction Company and the said cheque according to paragraph No. 7 of the complaint is still lying with the respondent. The respondent averred in the complaint lodged by him before the court of learned Chief Judicial Magistrate, Anantnag that the petitioner transferred the amount of 14.75 lacs mentioned in the cheque in favour of "Mir Steel Rolling Mill Pvt. Ltd." on his own after changing the cheque number from 710831 to 710835. The respondent averred in the complaint lodged by him before the court of learned Chief Judicial Magistrate, Anantnag that the petitioner transferred the amount of 14.75 lacs mentioned in the cheque in favour of "Mir Steel Rolling Mill Pvt. Ltd." on his own after changing the cheque number from 710831 to 710835. The court of learned Chief Judicial Magistrate; Anantnag, on the basis of the pleadings set out in the complaint and the statement of complainant came to the conclusion that prima facie offences under Section 420, 506 RPC are made out against the accused (petitioner herein) and accordingly issued bailable warrants against the petitioner. On 29.04.2017, the respondent filed a supplementary affidavit before the trial court which indicated that the petitioner did not make good the deficiency though he was verbally asked by the court to do so. It is stated that the basis of its filing is not indicated in the interim orders passed by the court. The court on entertaining the supplementary affidavit passed two orders on 29.04.2017 extending two different directions. In, terms of one of the orders, the complainant was directed to produce the evidence and the second order directed the Chairman of the Bank to hold a full-fledged enquiry within fifteen days and submit the enquiry report to the court. 2. Heard and considered. 3. The law is that the inherent jurisdiction of the High Court could be exercised to quash the proceedings in a proper case either to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. The jurisdiction can be exercised to quash proceedings in a case where there is a legal bar against the institution or continuance of the proceedings; where the allegations in the first information report or complaint do not make the offence alleged and where either there was no legal evidence adduced in support of the charge or the evidence adduced clearly or manifestly failed to prove the charge. The High Court in exercising its jurisdiction under Section 561-A cannot embark upon an enquiry as to whether the evidence in the case is reliable or not. 4. Testing the instant case on the touchstone of the law laid down above, a cheque can sometimes be made payable in cash or made payable to a specific name or bearer. The High Court in exercising its jurisdiction under Section 561-A cannot embark upon an enquiry as to whether the evidence in the case is reliable or not. 4. Testing the instant case on the touchstone of the law laid down above, a cheque can sometimes be made payable in cash or made payable to a specific name or bearer. The cheque is payable by the drawee bank over the counter to the bearer or the presenter of the cheque. The bearer cheque can be negotiated or passed to another person by mere delivery. Bearer cheque can be transferred by mere delivery and it needs no endorsement. In simple words, a cheque which is payable to any person who presents it for payment at the Bank counter is called a "Bearer Cheque". 5. The allegation against the petitioner accused is that the complainant issued a cheque bearing number 710831 for an amount of Rs. 14.75 lacs mentioning the name of "S.A. Gold Ispat Pvt. Ltd.", on the cheque. The allegation further is that the petitioner accused transferred the amount in the cheque to "Mir Steel Rolling Mill Pvt. Ltd." and also changed the cheque number. It is also alleged that the respondent/complainant issued cheque bearing No. 710835 to J & K Construction Company for an amount of Rs. 1.00 lac and the complainant after coming to know of the fraud settled the payment of cheque No. 710831. It is also the case of complainant that the cheque No. 710831 had been issued to "S.A. Gold Ispat Pvt. Ltd." and not to "Mir Steel Rolling Mill Pvt. Ltd.", while as Cheque No. 710835 is lying with the respondent complainant. An attested copy of the cheque No. 710831 issued by the respondent/complainant forms a part of the record of this Court. What transpires from the perusal of the said cheque is that the word "Bearer" has not been omitted from it. Section 85 of the Negotiable Instrument Act, 1881 reads as under:- "85. Cheque payable to order-1. Where a cheque payable to order purports to be endorsed by or on behalf of the payee, the drawee is discharged by payment in due course. 2. Section 85 of the Negotiable Instrument Act, 1881 reads as under:- "85. Cheque payable to order-1. Where a cheque payable to order purports to be endorsed by or on behalf of the payee, the drawee is discharged by payment in due course. 2. Where a cheque is originally expressed to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof, notwithstanding any endorsement whether in full or in blank appearing thereon, and notwithstanding that any such endorsement purports to restrict or exclude further negotiation." 6. The said provision makes it abundantly clear that when the cheque is expressed to be payable to the bearer the drawee is discharged by the payment in due course to the bearer thereof. In the case on hand, the cheque was admittedly drawn by the respondent/complainant and the bank being the drawee within the meaning of Section 7 of the Negotiable Instrument Act, 1881 was under an obligation to honour the cheque when presented to it for payment in due course to the bearer. The name "S.A. Gold Ispat Pvt. Ltd." stated in the cheque is of no consequence as long as the cheque is a bearer cheque. The letters or 'Bearer' present on the cheque were neither scolded off nor was the cheque directed to be payable to the payee. 7. Having regard to this legal position, the cheque was produced before the bank by "Mir Steel Rolling Mill Pvt. Ltd." and the amount mentioned in the cheque was credited in the account of "Mir Steel Rolling Mill Pvt. Ltd.". In doing so the petitioner accused, who at the relevant time was the Branch Manager of the Bank acted in accordance with the law. The attested copy of the cheque attached to the petition issued in the name of "S.A. Gold Ispat Pvt. Ltd." or "Bearer" bearing No. 710831 contained an endorsement on the back side which directed that the amount be transferred to "Mir Steel Rolling Mill Pvt. Ltd." account CC-74 and this endorsement had been made by MD, "S.A. Gold Ispat Pvt. Ltd." 8. There is no denial of the fact that the cheque bearing No. 710831 was issued for amount of Rs. 14.75 lacs. There is no denial of the fact that the cheque bearing No. 710831 was issued for amount of Rs. 14.75 lacs. The allegation that the petitioner accused changed the last digit on the cheque from 710831 to 710835 is inconsequential (although it has been stated that it so happened in the computerized system of the bank by a bona fide mistake). The cheque that bore the number 710831 and the amount mentioned in it has been transferred in the account of "Mir Steel Rolling Mill Pvt. Ltd." on the basis an endorsement as stated herein before. The change in the last digit has not changed the substratum of the case. It is not disputed that this amount of Rs. 14.75 lacs had not to be paid to "S.A. Gold Ispat Pvt. Ltd". The complainant respondent herein has stated that the petitioner on his own transferred the amount mentioned in the cheque (Rs. 14.75 lacs) in favour of "Mir Steel Rolling Mills Pvt. Ltd.", which is belied from the record more particularly by a certificate of the M.D., "Mir Steel Rolling Mills Pvt. Ltd." placed on record by the petitioner during the course of arguments, the contents of which are reproduced below verbatim:- "I, Shafiq Ahmad Mir, Managing Director S.A. Gold Ispat Pvt. Ltd. as Managing Director of Mir Steel Rolling Mills Pvt. Ltd., do hereby confirm that a Cheque dated 28.12.2015 for Rs. 14,75,000/- issued by S.F. Traders (Account No. CC B/U JK Bank Zirpora), was endorsed by me for being credited to the account of Mir Steel Rolling Mills (CC-74 B/U JK Bank Lassipora). The said amount was accordingly credited by B/U Lassipora on 28.12.2015 itself to the account of Mir Steel Rolling Mills. Sd/- Managing Director" 9. The respondent/complainant has accused the petitioner of "fraud". The trial court has taken cognizance for an offence under Section 420 RPC. The said provision reads as follows: "420. Cheating and dishonestly inducing delivery of property. The said amount was accordingly credited by B/U Lassipora on 28.12.2015 itself to the account of Mir Steel Rolling Mills. Sd/- Managing Director" 9. The respondent/complainant has accused the petitioner of "fraud". The trial court has taken cognizance for an offence under Section 420 RPC. The said provision reads as follows: "420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." It is evident that for purposes of attracting Section 420, the accused must have resorted to "cheating" within the meaning of Section 415 RPC. Further under Section 420, cheating must dishonestly induce the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security. The word "dishonestly" is defined in Section 24 RPC in the following terms: "Whoever does anything with the intention of causing wrongful gain to one person or wrongly cause loss to another person, is said to do that thing "dishonestly." 10. Having regard to the factual requirements of the substantive loss under Section 415, it is self-evident from the complaint and other materials that none of these provisions is attracted. 11. As far as the alleged threat is concerned, the only statement given is in para 8 of the complaint. It is bereft of particulars, time and date. Even the nature of the alleged threat has not been stated. The requirements of Section 506 RPC are therefore not satisfied by the alleged statement made in para 8 of the complaint. The cumulative effect of all that has been said and done above is that the complainant admits that he issued the cheque for Rs. 14.75 lacs. The cheque issued was a bearer cheque. It was endorsed by Managing Director of "S.A. Gold Ispat Pvt. Ltd." in favour of "Mir Steel Rolling Mills Pvt. Ltd. Both the concerns are run and managed by one and the same person. 14.75 lacs. The cheque issued was a bearer cheque. It was endorsed by Managing Director of "S.A. Gold Ispat Pvt. Ltd." in favour of "Mir Steel Rolling Mills Pvt. Ltd. Both the concerns are run and managed by one and the same person. The cheque, not only on the basis of the endorsement made by "S.A. Gold Ispat Ltd.", but also being a bearer cheque, was credited in the account of Mir Steels. Thus at no stage the petitioner accused cheated the complainant nor did he dishonestly induce him to issue the cheque or caused any wrongful gain to any other person or wrongful loss to the complainant. Therefore no offence is disclosed from the complaint or by the statement recorded in support of the complaint. The petitioner accused is not found connected with the commission of any offence leveled against him. Therefore, the criminal complaint titled "Sameer Ahmad Dar v. Suhail Ahmad" (File No. 72/Alif) and the impugned orders including the order of taking cognizance emanating therefrom are quashed. The record of the trial court shall be sent back along with a copy of this order.