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2018 DIGILAW 2500 (BOM)

Ganesh v. Raju

2018-10-15

S.B.SHUKRE

body2018
JUDGMENT S.B. Shukre, J. (Oral) - Heard. 2. Admit. 3. Heard forthwith by consent. 4. According to the learned counsel for the applicant against whom the trial Court has issued a process under section 138 of the Negotiable Instruments Act, the cheque in question here has been presented to the Bank not just twice as has been alleged in the complaint but thrice. He submits that the cheque in question was, in particular, presented to the Akola Janta Commercial Cooperative Bank Limited, Akola on 4.4.2016 and as per the copy of the memo issued by this Bank, the reason for dishonour of the cheque in question was "alteration in date requires drawer''s signature". He submits that this memo issued by the Bank does not disclose any other reason including that of insuffiency of funds for dishonour of cheque and if this was so, the dishonour of cheque was not for the reason as contemplated under section 138 of the Negotiable Instruments Act. He submits that this material fact of presentation of cheque on 4.4.2016 and its dishonour on the same day by the Bank for the reason totally unconnected with an offence punishable under section 138 of the Negotiable Instruments Act has been suppressed by the complainant and this is nothing but abuse of process of law. 5. According to the learned counsel for the respondent, although it may be true that on some aspects of the matter, the complaint may not be specific, but upon reading the complaint as a whole, one gets sufficient idea about the dishonour of the cheque latest on 13th April, 2016 not only for date alteration requiring drawer''s signature, but also for the reason of insufficiency of funds and this date of 13.4.2016 being the date within a period of three months validity period of the cheque, it cannot be said that there is no prima facie case made out by the complainant. 6. I have gone through the memo issued by the Bank on 4.4.2016 as well as 13.4.2016, copies of which are placed on record. The first memo dated 4.4.2016 (page 31) indicates that the cheque in question was dishonoured for the reason of alteration of the date requiring signature of the drawer. The second memo dated 13.4.2016 indicates that the cheque was dishonoured for two reasons, namely , i)alteration of date requiring drawer''s signature, ii) funds insufficient. 7. The first memo dated 4.4.2016 (page 31) indicates that the cheque in question was dishonoured for the reason of alteration of the date requiring signature of the drawer. The second memo dated 13.4.2016 indicates that the cheque was dishonoured for two reasons, namely , i)alteration of date requiring drawer''s signature, ii) funds insufficient. 7. In the complaint filed by the respondent, there is, however, no reference whatsoever made to the presentation of the cheque in question by the respondent on 4.4.2016 and its being dishonoured for the reason of alteration of date. Needless to say, this reason of alteration of date is not connected with an offence punishable under section 138 of the Negotiable Instruments Act and, therefore, for this reason alone no cause of action to file a complaint under section 138 of the Negotiable Instruments Act can arise. However, as stated earlier, this fact has not been disclosed in the complaint. There is also no statement made in the complaint that the cheque in question has been presented to the Bank for its encashment only on two occasions and not on three occasions. Of course, at the stage of issuance of the process, the accused is not in the picture and it is only the complainant who is present before the Court and the Court has to satisfy itself from the allegations made in the complaint, verification statement of the complainant and any other evidence, if any, that there are sufficient grounds for proceeding further in the matter. This being the law, there is a heavy responsibility upon the complainant to disclose all material facts before the Court so as to enable the Court to satisfy itself about fulfillment of the parameters governing the exercise of the Court''s discretion regarding issuance of process under section 204 of Cr.P.C., 1973 The Court, on its part, is also required to be careful while exercising its discretion in such matter. In the present case, it appears to me that because of certain vagueness left in the complaint and the silence stoically maintained by the complainant, a clear picture about the number of times for which the cheque in question was actually presented by the respondent does not emerge. I have already found that the complaint does not contain any statement to the effect that the cheque in question was presented only on two occasions. 8. I have already found that the complaint does not contain any statement to the effect that the cheque in question was presented only on two occasions. 8. As a matter of fact, the allegations made in the complaint also do not show the exact date on which the cheque in question was for the first time presented to the Bank and what was the reason for its dishonour. Then, the complaint only says that when the cheque was presented it was dishonoured on 13.4.2016 for the reason "funds insufficient". The complaint does not disclose that there was one more reason for the bank to dishonour the cheque and that reason was not connected with the offence punishable under section 138 of the Negotiable Instruments Act. The other reason was of alteration of date requiring full signature of the drawer. In this regard, I would also say that it is not known as to why the Bank official thought it fit to also give the second reason of insufficiency of funds when the first reason being what it was, itself prevented the concerned bank official from going into the funds position of the account on which the cheque was drawn. The first reason was of alteration of date and it suggested that the cheque in question was of doubtful origin and if that was so, one cannot understand as to why the Bank official went further to look into the fund position of the account and also disclose the same to a person who is presenting a cheque of doubtful origin. Then, this is a case in which even if the funds were sufficient, the cheque probably could not have been honoured by the Bank as there was date alteration not authenticated by the drawer in the manner required by the Bank, and therefore, this doubt i.e. doubt about honouring of the cheque by ignoring first reason, was required to be, primafacie, removed by the complaint. All these aspects of the matter, which are very material in the present case have not been considered by the learned Magistrate. 9. In a case like the present one, the complainant is required to give further details in the matter. All these aspects of the matter, which are very material in the present case have not been considered by the learned Magistrate. 9. In a case like the present one, the complainant is required to give further details in the matter. The complainant would also be required to give the explanation about the Bank officials, after finding the cheque in question to be of doubtful origin, examining the status of the account on which the cheque was drawn and disclosing the same to the payee or holder of such a cheque. After furnishing such details in the matter, the learned Magistrate can always pass an order by exercising his discretion in a judicious manner. But, till this happened and in fact this has not happened in the present case, the order cannot be found to be consistent with the settled principles of law. It has caused a grave injustice to the applicant. 10. In the circumstances, I am of the opinion that this application deserves to be allowed. 11. The application is allowed. 12. The impugned order of issuance of process dated 24.10.2016 is hereby quashed and set aside. 13. The matter is remanded back to the trial Court for its fresh consideration in accordance with law.