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2019 DIGILAW 832 (GAU)

Sankar Biswas v. State of Assam

2019-07-17

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. G. Choudhury, learned counsel appearing for and on behalf of the petitioner and Mr. VK Chopra, learned counsel for the respondent No.2 and Mr. D. Das, learned Additional Public Prosecutor, Assam for the State/respondent No.1. 2. The petitioner herein is facing a trial under Section 138 of Negotiable Instrument Act (NI Act) pertaining to C.R. Case No.2644C /2007 filed by the respondent No.2 for realization of an amount of Rs.1 Lakh. 3. The respondent No.2 filed a complaint before the court on 02.06.2007 contending that the accused-petitioner being the owner of M/s Babai Tyre Agency who used to purchase the goods from the complainant and in order to liquidate the liabilities payable by said M/s Babai Tyre Agency, the accused-petitioner had issued two nos. of cheques of Rs.50,000/- each to the respondent/complainant dated 15.03.2007 and 14.03.2007 and both the cheques were presented before the Bank which returned dishonoured. Thereafter, the complainant issued Demand Notice on 17.04.2007 for payment of the cheque amount but as the cheque amount was not paid, the complainant filed a case under Section 138 of NI Act. The learned trial court accordingly took the cognizance under said Section of law and issue summon to the accused-petitioner. Initially, the accused appeared before the court and prayed for dispensing his personal appearance by filing a petition under Section 205 of Code of the Criminal Procedure (CrPC)and the learned trial court vide order dated 13.07.2007 directed for appearance of the accused person. 4. At this stage, the accused-petitioner has pressed the present petition filed under Section 482 of CrPC read with Section 401 CrPC for quashing the aforesaid criminal proceedings on the ground that the cheques in question was issued for security purpose vide Annexure-4(a), and as such, he is not at all liable under Section 138 of NI Act as it was not issued against legally enforceable debt within the meaning and ambit of the Act. 5. Learned counsel for the petitioner has pressed the documents that were issued by the respondent/complainant to him to show that the cheque was issued for the purpose of security. Replies of the accused-petitioners to the Legal Notice vide Annexures-G & H have also been pressed into to submit that there is no whisper in the complainant's petition that cheque was issued to the complainant's as security and complainant has suppressed the material facts. Replies of the accused-petitioners to the Legal Notice vide Annexures-G & H have also been pressed into to submit that there is no whisper in the complainant's petition that cheque was issued to the complainant's as security and complainant has suppressed the material facts. 6. I have gone through the documents annexed. 7. Learned counsel for the respondent No.2 has rebutted all the contentions of the petitioner's side and has pressed into their affidavit-in-opposition that has been filed in this case to submit that the petitioner herein had already caused long delay towards disposal of the matter since the filing of the case in the year, 2007 and subsequently, while the trial court directed for his appearance, he suddenly preferred the present petition in 2017 only to delay the process. 8. However, referring to the various documents submitted by the learned counsel for the petitioner as regards plea that cheque was issued for security purpose and about suppression of facts, it is contended by the learned counsel for the respondent No.2 that said issue cannot be termed as suppression of fact and that the complaint/respondent had narrated all the facts that is necessary to draw the presumption under Section 138 of NI Act. As regards the plea of issuance of cheque as security, it has been replied in para-7 of the affidavit-in-opposition that cheques in question were issued on condition that in the event of failure of the petitioner to make payment of the dues, the complaint have the option to encash the cheques amount by presenting the same to Bank and accordingly, as the petitioner failed to make payment of dues, the complaint deposited the aforesaid cheques for encashment but the same was dishonoured and returned without payment by the Bank. Thereafter, only the respondent No.2 issued a Demand Notice to the accused-petitioner. It has also been contended that same aspect has not been raised by the petitioner when the Legal Notice was served upon him prior to filing of the case. Learned counsel for the respondent No.2 has also pressed to the contents of the reply given by the present accused-petitioner to the Legal Notice dated 07.05.2007 and 09.07.2007 wherein the petitioner has no way denied the liability to pay the cheque amount and it is contended that the petitioner cannot now deny the liability to pay the outstanding dues. 9. Learned counsel for the respondent No.2 has also pressed to the contents of the reply given by the present accused-petitioner to the Legal Notice dated 07.05.2007 and 09.07.2007 wherein the petitioner has no way denied the liability to pay the cheque amount and it is contended that the petitioner cannot now deny the liability to pay the outstanding dues. 9. It has further been vehemently contended by the respondent No.2 that the security cheque was issued by the accused-petitioner in view of the long business transactions and liability of the accused-petitioner to pay the outstanding amount vide Annexures-G & H. 10. Learned counsel for the petitioner has relied upon certain decisions which are as follows: (1) (Kundan Lal Rallaram vs. Custodian, Evacuee Property, Bombay, (1961) AIR SC 1316); (2) (Don Ayendia vs. State of Assam and another,2014 3 GLR 779); and (3) (Ramkrishna Urban Counsel-operative Credit Society Ltd., Ahmednagar vs. Rajendra Bhagchand Warma, (2010) 4 MhLJ 27 ). 11. Relying on the ratio laid down in the aforesaid cases to support his contention, learned counsel for the petitioner submits that while the complainant has withdrawn his best evidence to support his case as regards the documents which in itself issued to show that cheque was issued for the security purpose and when the complainant has failed and avoided to made statement in his complaint petition as to under what circumstances he has proceeded to encash the security cheque, such a proceeding under Section 138 NI Act is nothing but abuse of process of law. 12. On the other hand, learned counsel for the respondent No.2 has relied upon the following decisions in support of his contentions: (1) Criminal Appeal No. 867/2016 dated 19.09.2016 arising out of S.L.P. (Crl.) No. 5410/2014 (Sampelly Satyanarayana Rao vs. Indian Renewable Energy Development Agency Ltd.); (3) (Priti BBhojnagarwala vs. Sate of Gujrat and another, (2002) 1 GLR 293 ); and (4) (HMT Watches Ltd. vs. M.A. Abida and another, (2015) 11 SCC 776 );& (5) Criminal Appeal No. 174/1998 of Kerala High Court (M. Velappa Menon vs. V.P. Moosankutty and State of Kerala). 13. On the basis of the aforesaid legal pronouncements, learned counsel for the respondent No.2 has contended that the challenges made in this present case on the factual defense cannot be entertained by this Court under a petition under Section 482 CrPC. 14. 13. On the basis of the aforesaid legal pronouncements, learned counsel for the respondent No.2 has contended that the challenges made in this present case on the factual defense cannot be entertained by this Court under a petition under Section 482 CrPC. 14. In HMT Watches (supra), it is held that wherein the accused challenges the criminal complaint case before the High Court on factual defences as to whether the cheque was given as security or not or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties. 15. Similarly, in Sampelly Satyanarayana Rao (supra), it is also categorically held that while dealing with the quashing petition, the Court has ordinarily to proceed on the basis of averments in the complaint and the defence of the accused cannot be considered at this stage and the Court considering the prayer for quashing does not adjudicate upon a disputed question of fact. 16. In the case of Priti Bhojnagarwala (supra) referring to the observations in the case of Halimuddin Ahmad vs. Ashoka Cement Ltd., (1976) CriLJ 449, it has been held as follows: "A complainant is not required to set out in the complaint all the evidence in his possession. A complaint is only an allegation of facts which constitute an offence with a view to summoning the accused for trial. It is, therefore, not necessary for a complainant to set out in a complaint all the evidence in his possession". 22.2 In case of Rajesh Bajaj v. State NCT of Delhi and Ors., (1999) 3 SCC 259 , II (1999) SLT 523=II (1999) CCR 4 (SC)=, it has been held by the Hon'ble Supreme Court as follows: "It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage". (That is at the stage under Section 482, Cr.P.C.). Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage". (That is at the stage under Section 482, Cr.P.C.). It is further held that- "If factual foundation for the offence has been laid in the complaint, the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing FIR (a step which is permitted only in extremely rarest of rare case), the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence". 17. Similar view of the Hon'ble Apex Court is also taken in the case of I.C.D.S Ltd. vs. Beena Shabeer & another, (2002) 6 SCC 426 that the wordings used in the said Section of 138 NI Act that "Where any cheque is issued by the person", under Section 138 of NI Act it leaves no manner of doubt that for whatever reason it may be the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. 18. In the aforementioned decision in Criminal Appeal No. 174/1998 of Kerala High Court (para-8), it has been held that if the cheque given by the guarantor when bounced is found to be within the fold of Section 138 of NI Act and that even if a blank cheque has been given as security, if bounced shall be the subject matter of a prosecution under Section 138 of NI Act. Therefore, even if the version of the accused that Ext.P1/cheque was issued as security is accepted even then the accused cannot avoid the liability under Section 138 of NI Act. 19. The above propositions of law has a bearing in the matter in issue for which I have discussed the same to some extent. 20. Therefore, even if the version of the accused that Ext.P1/cheque was issued as security is accepted even then the accused cannot avoid the liability under Section 138 of NI Act. 19. The above propositions of law has a bearing in the matter in issue for which I have discussed the same to some extent. 20. Pertaining to the case is hand, it is noted that petitioner herein has referred to the documents that was issued by the complainant to submit that the cheque was issued for the purpose of security way back in the year 2005 but the petitioner herein has also not mentioned as to what happened thereafter when the cheque was bounced, in his petition filed in the year 2017, as to whether by this time he has discharged his liability as against the said cheque and the complainant is estopped from encashing the cheque which was issued for security purpose. Further, it is to be noted that the complainant while issuing Legal Notice apprising about the aforesaid cheques, it was the first opportunity on the part of the accused-petitioner to rebut that the aforesaid cheques were not meant for payment, as now has been contended, but his reply to the Legal Notice vide Annexures- G & H would go to show that he has never denied the liability to pay the outstanding dues under the cheques amounting to Rs.1 Lakh and he has clearly averred in his reply that he has no intention not to pay the outstanding dues. He has requested to make way for easy installment of the admitted amount. In view of such reply of the accused-petitioner and in absence of such payment, obviously, the complainant was in a position to encash the said cheques for the inability of the accused petitioner to pay the outstanding dues. The complainant/respondent No.2 in his affidavit-inopposition (para-7) has also mentioned as to under what circumstances the cheque was presented before the Bank concerned. The accused-petitioner failed to challenge such serious aspect in the first opportunity, so now at the middle of the trial, he cannot raise such question. 21. The complaint that was filed under Section 138 of NI Act by the complainant by following all the requisite criteria prior to filing of the complaint and as such, there is no irregularity on the part of the trial court while taking cognizance. 21. The complaint that was filed under Section 138 of NI Act by the complainant by following all the requisite criteria prior to filing of the complaint and as such, there is no irregularity on the part of the trial court while taking cognizance. The challenge made before this Court is pertaining to the disputed facts which can only be agitated before the trial court by adducing proper evidence of both sides and for such disputed fact, this Court is not in a position to adjudicate such a matter by invoking the provisions of Section 482 of CrPC to quash the proceedings as a whole. The petitioner will be at liberty to challenge such matters before the trial court in course of its trial by adducing rebuttal evidence as per law. 22. Resultantly, this Court is not inclined to invoke the provisions of Section 482 CrPC to quash the proceedings and the present criminal petition stands accordingly dismissed. 23. It is however made clear that the learned trial court while adjudicating the matter would no way be influenced or bound by any of the observations made by this Court in disposing the present criminal petition.