Research › Search › Judgment

J&K High Court · body

2021 DIGILAW 253 (JK)

Gh. Ahmad Rather v. Farooq Ahmad Parray

2021-05-27

JAVED IQBAL WANI

body2021
JUDGMENT : 1. Inherent jurisdiction of this court under Section 561-A Cr.P.C. (now Section 482 Cr.P.C.) is being invoked by the petitioner seeking quashment of complaint File No. 04/C titled as "Farooq Ahmad Parray vs. Ghulam Ahmad Rather" as also order dated 31-03-2016 and all subsequent proceedings/orders. 2. The petition is filed on the premise by the petitioner that the complainant/respondent filed a false and baseless complaint under Section 138 of Negotiable Instrument Act (for short the Act) in the court of Chief Judicial Magistrate, Ganderbal against the petitioner on 31-03-2016 having been assigned to the court of Additional Special Mobile Magistrate, Ganderbal (for short the trial court). 3. It is being stated that in the complaint the complainant/respondent alleged that he had business transactions with the petitioner herein and the petitioner owed a sum of Rs. 23,46,000/- to him and in this regard had issued to him two cheques bearing Nos. 356152 dated 04-03-2016 amounting to Rs. 13 lacs and cheque No. 356153 dated 04-03-2016 amounting to Rs. 10,46,000/- drawn at J&K Bank Branch Duderhama. 4. It is being stated that the complainant/respondent alleged to have presented the said cheques before the drawee Bank on 04-03-2016 which however, came to be returned back to him on 04-03-2016 itself for the reason "not sufficient funds". 5. It is being stated that the complainant/respondent alleged in the complaint that a demand notice for payment of the cheque amount was issued against the petitioner herein for making payment within 15 days from the date of receipt of the said notice which notice is stated to have been sent through registered post on 16- 03-2016 and that the petitioner herein failed to make payments even after receiving said notice. 6. It is being stated that the complainant/respondent herein filed the aforesaid complaint before the trial court on 31-03-2016 through his counsel and on the said date the statement of the complainant/respondent and his witness was recorded by the trial court and that the trial court issued notice to the complainant vide order dated 31-03-2016. 7. It is being stated that the trial court while issuing notice on 16-03-2016 had to frame an opinion for taking cognizance under Section 204 Cr.P.C. that there are sufficient grounds for proceeding in the case. 7. It is being stated that the trial court while issuing notice on 16-03-2016 had to frame an opinion for taking cognizance under Section 204 Cr.P.C. that there are sufficient grounds for proceeding in the case. The satisfaction recorded by the trial court and cognizance taken thereof is stated to be patently farce and without application of mind and perusal of the record. 8. It is being stated that the complainant/respondent in the complaint did not mention as to when the demand notice issued against the petitioner was served upon him. The complaint is stated to have been filed before the court below before expiry of 15 days from the date of dispatch of notice as the offence under Section 138 of the Act is made out only if the accused fails to make the payment within 15 days from the date of the receipt of the demand notice. 9. It is being stated that there has been no material on record to show that the demand notice was served upon the petitioner and that the complainant/respondent without waiting for expiry of 15 days stipulated in the demand notice filed the complaint and thus, there was no commission of offence committed by the petitioner and consequently the trial court ought not to have entertained the complaint, taken cognizance or issue notice to the petitioner. The presentation of complaint, the order of cognizance and issuance of notice to the petitioner vide order dated 31-03-2016 is contended to be illegal and in violation of the provisions of the Act. 10. It is being further stated that the complaint case was listed before the court below on 10-08-2017 and was adjourned on the ground that the parties want to have private settlement whereafter it had been fixed for 19-08-2017 on which date the parties sought extention of time for compromise and that the case was fixed for 09- 09-2019 on which date the petitioner could not attend the court resulting into issuance of non-bailable warrants against the petitioner. 11. It is being further stated that on 31-05-2018 the complainant/respondent herein filed an application before the trial court for attaching the property of the petitioner and that the trial court directed issuance of proclamation against the petitioner for 22-06-2018 which order is contended to be bad in law for non-recording of any reasons in this regard by the trial court. 12. 12. It is being further stated that on 22-06-2018, the trial court directed the Tehsildar concerned to attach the property of the petitioner which order as well is contended to have been passed in violation of the provisions of Section 88 Cr.P.C. 13. The petitioner contends that all the proceedings conducted by the trial court upon the complaint of the complainant/respondent herein are patently illegal from day one and in violation of the provisions of law, Act and Cr.P.C. The trial court is stated to have abused the process of law by entertaining the aforesaid complaint so much so passing various orders from time to time. No offence is stated to have been made out in the complaint against the petitioner. 14. Heard learned counsel for the petitioner and perused the record. 15. The fundamental moot point which is being raised in the instant petition is that the complaint filed by the complainant/respondent herein before the court below had been filed prematurely under the provisions of the Act, which could not have been entertained by the trial court taken cognizance of or process issued thereupon against the petitioner herein. The case set up by the petitioner is based on the premise that there is no mention in the complaint as to when the demand notice which was sent through registered post on 16-03--2016 to the petitioner was received by the petitioner. 16. Before adverting to the aforesaid point, it would be appropriate and advantageous to refer here under to Section 138 and Section 142 of the Act being relevant and germane herein:- Section 138 Dishonour of cheque for insufficiency, etc. 16. Before adverting to the aforesaid point, it would be appropriate and advantageous to refer here under to Section 138 and Section 142 of the Act being relevant and germane herein:- Section 138 Dishonour of cheque for insufficiency, etc. of funds in the accounts: 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 provisions 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; and (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. The proviso appended thereto imposes certain conditions before a complaint petition can be entertained. Explanation-For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability. The proviso appended thereto imposes certain conditions before a complaint petition can be entertained. Section 142 Cognizance of offences : Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974-) (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period]. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. 17. A plain reading of the above provisions suggest that Section 138 is a penal provision that prescribes imprisonment upto two years and fine upto twice the cheque amount. It must, therefore, be interpreted strictly, for it is one of the accepted rules of interpretation that in a penal statute, the Courts would hesitate to ascribe a meaning, broader than what the phrase would ordinarily bear. Section 138 is in two parts. The enacting part of the provision makes it abundantly clear that what constitutes an offence punishable with imprisonment and/or fine is the dishonour of a cheque for insufficiency of funds etc. in the account maintained by the drawer with a bank for discharge of a debt or other liability whether in full or part. The language used in the provision is unambiguous and the ingredients of the offence clearly discernible viz. (a) Cheque is drawn by the accused on an account maintained by him with a banker. (b) The cheque amount is in discharge of a debt or liability and (c) The cheque is returned unpaid for insufficiency of funds or that the amount exceeds the arrangement made with the bank. But for the proviso that comprises the second part of the provision, any dishonour falling within the four corners of the enacting provision would be punishable without much ado. But for the proviso that comprises the second part of the provision, any dishonour falling within the four corners of the enacting provision would be punishable without much ado. The proviso, however, draws an exception to the generality of the enacting part of the provision, by stipulating two steps that ought to be taken by the complainant holder of the cheque before the failure of the drawer gives to the former the cause of action to file a complaint and the competent Court to take cognizance of the offence. These steps are distinct from the ingredients of the offence which the enacting provision creates and makes punishable. It follows that an offence within the contemplation of Section 138 is complete with the dishonour of the cheque but taking cognizance of the same by any Court is forbidden so long as the complainant does not have the cause of action to file a complaint in terms of clause (c) of the proviso read with Section 142. 18. While adverting to the issues raised in the petition, a perusal of the record reveals that the demand notice has been sent through registered post indisputably by the complainant/respondent herein to the petitioner on 16-03-2016. The petitioner herein however, does not anywhere in the instant petition or else before the trial court deny to have received the said demand notice after entering appearance before the trial court on 27.05.2016, 10.08.2017 and 19.08.2017 along with the counsel. Instead the petitioner on 10.08.2017 and 19.08.2017 in presence of complainant/respondent herein referred to a compromise being arrived at in the matter while seeking extension of time thereof suggesting manifestly that the petitioner had no objection qua the maintainability of complaint, including the one being raised in the instant petition or else proceeding undertaken thereupon by the trial court. After stating in the complaint that a demand notice was sent to the accused, in law, there is no requirement to state anything further in this regard in the complaint. 19. The demand notice sent through registered post on 16.03.2016 in ordinary course of business would be deemed/presumed to have been served upon the petitioner on the said date itself in view of the fact that there is no denial thereto the same by the petitioner either before the trial court or this court. 19. The demand notice sent through registered post on 16.03.2016 in ordinary course of business would be deemed/presumed to have been served upon the petitioner on the said date itself in view of the fact that there is no denial thereto the same by the petitioner either before the trial court or this court. The 15 days time stipulated under the Act thus, would be deemed to have commenced with effect from 16.03.2016 and ended on 30.03.2016. The complaint indisputably has been filed on 31.03.2016 upon failure of the petitioner to make payment of the said amount to the complainant within 15 days after receipt of the notice and thus, after the expiry of the period of 15 days the complaint is competent and maintainable as also the proceedings initiated thereupon by the trial court. 20. In regard to above a reference here to the Judgment of the Apex Court passed in case titled as "C.C. Alavi Haji vs. Palapetty Muhammed & Anr." reported in (2007) 6 SCC 555 would be relevant and appropriate wherein at Para 12, 13 & 17 following is noticed and observed: "12. Therefore, the moot question requiring consideration is in regard to the implication of Section 114 of the Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Evidence Act, 1872 reads as follows: "114. Court may presume existence of certain facts :- The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The court may presume– that the common course of business has been followed in particular cases;" 13. According to Section 114 of the Act, read with Illustrations (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below: "27. Meaning of service by post-Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." "17. It is also be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran Case if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act." 21. The judgement of the Apex Court titled as "Yogendra Pratap Singh Vs. Savitri Pandey" reported in 2014 (10) SCC 713 relied upon by learned counsel for the petitioner in view of what has been observed and considered hereinabove is misplaced and does not lend any support to the case of the petitioner. 22. Further the challenge thrown in the petition by the petitioner to various other orders passed by the trial court besides the complaint and order of cognizance dated 31-03-2016 do not call for any interference in the instant petition, in that, the said orders/proceedings passed and conducted by the trial court are validly passed/conducted. 23. The petition in the aforesaid backdrop is liable to be dismissed and is accordingly dismissed.