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2018 DIGILAW 740 (JK)

Balkar Singh v. Pardeep Kumar

2018-09-28

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure, petitioners seek quashing of complaint titled Pardeep Kumar vs. Balkar Singh and Anr. and also the order dated 28.04.2018, passed by the learned Additional Sessions Judge, Kathua. 2. The case of the petitioner is that respondent-Pardeep Kumar entered into an agreement with the petitioner No. 2 through petitioner No. 1 for providing land comprising of Kh. No. 215, 152, 222, 223, 151 measuring 200 kanals situated at Village Jagatpur, Tehsil and District Kathua and the petitioners had paid a sum of Rs. 1,38,00,000/-. It is stated that on 10.03.2015, two signed blank cheques of petitioners one that of Citizens Co-operative Bank Ltd. Moti Bazar, Jammu and the other of J&K Bank Amphalla, Jammu were stolen/misplaced from his vehicle along with cheque book and the other official record kept in his brief case. The petitioner No. 1 approached the Police Post Ware House for filing a report but he was advised to get a public notice published in at least two newspapers in order to register the case. On 12.03.2015, petitioner inserted a public notice in two newspapers of Jammu. 3. Learned counsel for the petitioners states that on 18.03.2015, the petitioners also informed their bankers i.e. Citizens Co-operative Bank Ltd., Moti Bazar, Jammu and J&K Bank Ambphalla, Jammu about the loss of the cheque books including the signed blank cheques so that no payment is made in case of their presentation. Thereafter, on 15.07.2015, the petitioner No. 1 also lodged a formal complaint with police Post Ware House, Jammu regarding the loss of signed cheque, cheque books and other documents. It is further stated that police has failed to initiate any action on the complaint of the petitioners but the respondent presented the misplaced cheque of J&K Bank for encashment while filling the figures to the tune of Rs. 3,72,20,000/- and another misplaced cheque for an amount of Rs. 1,81,70,000/- of Citizens Co-operative Bank Ltd. Moti Bazar Jammu, but said cheques were returned unrealized as per the instructions of the petitioners. 4. Learned counsel for the petitioners further states that on 26.03.2016, respondent filed a complaint under Section 138 Negotiable Instrument Act against the petitioners before the Court of learned JMIC Kathua. 1,81,70,000/- of Citizens Co-operative Bank Ltd. Moti Bazar Jammu, but said cheques were returned unrealized as per the instructions of the petitioners. 4. Learned counsel for the petitioners further states that on 26.03.2016, respondent filed a complaint under Section 138 Negotiable Instrument Act against the petitioners before the Court of learned JMIC Kathua. It is stated that a perusal of the complaint shows that the respondent has referred to one suit filed by him before the Court of learned Sub-Registrar, Jammu wherein he has claimed to have entered into a settlement, with the petitioners and they allegedly having agreed to pay him a sum of Rs. 5,53,90,000/-. It is stated that petitioners filed an application under Order 7 Rule 11 CPC for rejection of the suit of the respondent being barred by law. It is further stated that on 01.02.2016, the suit filed by the respondent was dismissed for default and till date it has not been restored, so the question of any compromise with him does not arise. It is stated that on 25.05.2017 petitioners filed an application before the JMIC Kathua for dropping of proceedings on various grounds, however, the same came to be dismissed on 24.08.2017. The petitioners preferred a revision before the learned Additional Sessions Judge, Kathua who also declined to interfere in the order passed by learned Magistrate, thereby upholding the same vide judgment dated 28.04.2018. 5. Being aggrieved of the order dated 24.08.2017 passed by learned JMIC Kathua and order dated 28.04.2018 passed by Addl. Sessions Judge, Kathua, petitioners have filed the instant petition challenging the above said orders on the following grounds:- (i) That continuation of criminal proceedings against the petitioners whose cheques have admittedly been misused by the respondent, definitely amounts to paying premium to a person who should have been hauled up in a criminal case of very serious nature for having presented the stolen cheques by filling huge amount to the tune of Rs. 5,53,90,000/- (Five crores fifty three lakhs and ninety thousand only). (ii) That the continuation of the proceedings in the instant case in the trial court against the petitioners is definitely an abuse of the process of law as admittedly there is no legally enforceable debt or other liability against them as envisaged under Section 138 of the N.I. Act and therefore, the complaint titled Pardeep Kumar vs. Balkar Singh and Anr. is liable to be quashed. is liable to be quashed. (iii) That a perusal of the complaint itself negates the claim of the respondent that the cheques in question were issued in lieu of a compromise in a civil suit, the fact remaining that the said suit was dismissed and a formal complaint with the police about the missing of the cheques stands already filed by the petitioners along with the intimation to the bankers as well by the petitioners, therefore, the complaint in itself was not competent as there was no legal liability which could be enforced by him against them. 6. I have considered the arguments of the learned counsel for the petitioners and perused the record. 7. From the perusal of the certified copy of the complaint annexed with the petition, it appears that respondent-Pardeep Kumar had filed a complaint under Section 138 of Negotiable Instruments Act, before the Court below JMIC Kathua. The relevant paras of the complaint reads as under:- “2. That subsequently dispute arose between the accused persons and the complainant, constraining the complainant to file a civil suit against the accused persons and one Sh. Prem Singh and Nikhil Mahajan and to resolve the same at the instance of the accused persons, a settlement came to be arrived, pursuant to the terms whereof the accused persons, admitting the liability, agreed to pay an amount of Rs. 5,53,90,000/- and the suit filed by the complainant was agreed to be withdrawn upon payment of aforesaid amount by the accused persons to the complainant. And accordingly in order to discharge the liability in the aforementioned sum the accused under the signatures of the accused No. 1 issued two cheques, the one bearing No. 169718 dated 16.11.2015 for an amount of Rs. 1,81,70,000/- (Rupees One Crore Eighty one lac, Seventy thousand ) from account No. 60283 with the Citizen Co-operative Bank Ltd. Jammu, Branch Office Moti Bazar, Jammu and the other bearing No. 021580 dated 23.11.2015 for an amount of Rs. 3,72,20,000/- (Rupees Three Crore Seventy Two Lac and Twenty thousand only) from account no. 0493040100002849 with the J&K Bank Branch Amphalla, Jammu in favour of the complainant. 3. 3,72,20,000/- (Rupees Three Crore Seventy Two Lac and Twenty thousand only) from account no. 0493040100002849 with the J&K Bank Branch Amphalla, Jammu in favour of the complainant. 3. That the complainant presented the aforesaid cheques for encashment through his Bankers Punjab national Bank, Branch Sanjimorh, District Kathua which upon being presented for encashment/clearance by complainants bankers to accused persons Bankers got dishonoured, the one on account of Funds Insufficient and other on account of Stop Payment vide dishonor memos dated 14.12.2015. Upon dishonor of the cheques the same were returned to the complainant by his bankers alongwith the memos of accused Bankers in that behalf. Original cheques in question along with dishonor memos are filed herewith as annexure B, C, D, E respectively. 4. That as the above stated cheques had been dishonored on account of FUNDS INSUFFICIENT and STOP PAYMENT so the complainant, by way of legal notice dated 09.01.2016 under his instructions through Mr. Sunil Sharma Advocate intimated the accused persons as to the dishonor of the cheques and raised a demand unto the accused persons for payment of cheques amount within a period of fifteen days from the date of receipt of the notice. It is submitted that to ensure the service of the notice the same were addressed both at the office as well as the residential address of the accused. Copy of the notice and the postal receipts evidencing the dispatch of the notice unto the accused persons are filled herewith as ANNEXURE-F & G respectively. 5. That the complaint with respects submits that despite the notices were addressed to the accused on their correct address the accused persons succeeded in evading the service thereof as is well gatherable from the endorsement by the officials of the postal department on the envelopes containing the notices sent to them by the registered post with A/D. Thus reckoning the date of endorsement on the registered posts and expiry of period prescribed for enabling the accused person to make the payment of the cheque amount and the default on their part to make the payment of cheque amount, cause of action has accrued to the complainant to file the instant complaint as by their such conduct they shall be deemed to have been served. Registered covers carrying endorsement received back with A/Ds are filed herewith as ANNEXURE H & I. 6. Registered covers carrying endorsement received back with A/Ds are filed herewith as ANNEXURE H & I. 6. That it is submitted that taking into account dishonor of the aforesaid cheque and consequently in the face and failure on the part of the accused to make the payment of the cheque amount to the complainant despite being out on notice in that behalf, the accused persons re guilty of committing an offence under Section 128 of the Negotiable Instruments Act and as such he is liable to be proceeded against and punished in law.” 8. From bare perusal of contents of complaint, it is evident that prima facie case for taking of cognizance u/s 138 of N.I Act is made out. A huge amount is involved. After the court took the cognizance, accused/petitioners filed an application for dropping the proceeding before trial on the grounds mentioned in this petition; Court below dismissed the same on 24.8.2017 on two grounds that Court cannot recall order of cognizance and factual grounds have been taken, which can be adjudicated during trial. Against order dated 24.08.2017, a revision was filed before Sessions Court Kathua, which was also dismissed on 28.4.218. Hence, present petition. 9. The main ground taken in the instant petition by learned counsel for the petitioners is that there was no legal liability which could be enforced against the petitioners, as no legal debt was raised against the petitioners. The said ground taken by the learned counsel for the petitioners, is not tenable, because it is a fact to be determined by the trial Court. The further ground taken by the learned counsel for the petitioners that petitioners lost the cheques and in this regard they lodged a report with the Police Post, Ware House Jammu, is also not tenable, because it is also a fact and defence which is required to be proved before the Court below. Further the complaint (Annexure D) moved by petitioner with regard to misplacing of cheque to police would reveal that it does not disclose any date of journey from Jammu to Kathua or date when cheque book was lost. This complaint is also self-contradictory with another letter (Annexure C) given to Branch Manager, Citizen Cooperative Bank, Moti Bazar, with regard to missing of cheque book, wherein it is stated that cheques have been mis-placed anywhere outside the office premises. 10. This complaint is also self-contradictory with another letter (Annexure C) given to Branch Manager, Citizen Cooperative Bank, Moti Bazar, with regard to missing of cheque book, wherein it is stated that cheques have been mis-placed anywhere outside the office premises. 10. Sections 118(a), 138 and 139 of the Act are also relevant for deciding the matter in question, these read as under:- “Section 118. Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made: (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration: 138. Dishonour of cheque for insufficiency, etc. of funds in the account - 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 have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend 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. (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. Explanation - For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. Section 139. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt, or other liability. 11. Chapter XVII containing Sections 138 to 142 was introduced in the Act with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation which serves the object of the statute. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of cheque, a party should not be allowed to get away from the penal provision of Section 138. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts. 12. Petitioners have raised factual defence which this court cannot appreciate in a petition u/s 561-A Cr.P.C. It is not the case of the petitioners that, there is some legal bar engrafted in law for taking cognizance. 13. In view of above, I do not find any infirmity of law and facts in the orders of Court below. This petition is dismissed at admission stage.