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2023 DIGILAW 1708 (ALL)

Mohd. Yunus Malik v. State of Uttar Pradesh

2023-07-17

NEERAJ TIWARI

body2023
JUDGMENT : 1. Heard Sri Anwari Hussain, learned counsel for the applicant, learned AGA for the State-opposite party no.1, Sri Pawan Kumar Shukla, learned counsel for the opposite party no.2 and Sri Manish Trivedi, learned counsel for the ICICI-Bank. 2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Criminal Complaint Case No. 36644 of 2022 (Anuj Kumar Gupta vs. Mohd. Yunus Malik) under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as Act, 1881) as well as summoning order dated 20.6.2022. 3. Learned counsel for the applicant submitted that complaint case was filed by the opposite party no.2 under Section 142 of Act, 1881 on the ground of bouncing of cheque. He next submitted that alongwith complaint, letter of Bank dated 20.4.2022 has also been annexed having no seal or signature. He firmly submitted that in absence of seal or signature, letter cannot be treated as valid document. He further submitted that relying upon such letter, cognizance order has been passed, which is bad and liable to quashed. 4. Per contra, Sri Pawan Kumar Shukla, learned counsel for the opposite party no.2 has opposed and submitted that he has received the very same letter from the bank and on that basis and he has filed complaint alongwith said letter, therefore, he is not at fault in all eventuality. He further submitted that if the cheque and letter are not bearing any official stamp of the bank, it does not render the said letter as invalid or illegal. In support of his contention, he has placed reliance upon the judgment of Delhi Court in the case of Guneet Bhasin vs. State of NCT of Delhi and others reported in (2023) 296 DLT 401. 5. Earlier this Court vide order dated 4.7.2023 impleaded the ICICI Bank and directed the bank to file counter affidavit. 6. In compliance of that, Sri Manish Trivedi, learned counsel for the ICICI-Bank has filed counter affidavit and clearly stated that this letter was issued by the Bank, but inadvertently, same could not be signed. Further, bank has tendered unconditional apology with the undertaking that bank would be more conscious in future and such mistakes shall not be repeated again. 7. In compliance of that, Sri Manish Trivedi, learned counsel for the ICICI-Bank has filed counter affidavit and clearly stated that this letter was issued by the Bank, but inadvertently, same could not be signed. Further, bank has tendered unconditional apology with the undertaking that bank would be more conscious in future and such mistakes shall not be repeated again. 7. Sri Anwar Hussain, learned counsel for the applicant in his rejoinder argument submitted that Section 146 of Act, 1881 clearly provides that notice of information of dishonored cheque must have official mark and in light of that no proceeding can be initiated against the applicant. 8. I have considered the rival submissions advanced by the learned counsel for the parties and perused the letter issued by the Bank. 9. The issue is before this Court about the interpretation of Section 146 of Act, 1881, which is being quoted hereinbelow:- "Section 146 in The Negotiable Instruments Act, 1881 The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved." 10. From perusal of the aforesaid provision, the intention of legislation is very much clear i.e. to verify the fact as to whether the cheque was produced before the Bank and dishonoured for some reasons or not. So far as present case is concerned, bank has informed that cheque was dishonored due to 'Insufficient Funds', but there is no official mark, signature and seal of the Bank in the said letter dated 20.4.2022. Bank has filed counter affidavit and clearly approved the letter and submitted that inadvertently signed was left out. Relevant paragraph of the counter affidavit is quoted hereinbelow:- "3. That the deponent very fairly submits that the cheque presented by the complainant Anuj Kumar Gupta was presented for clearing in the ICICI Bank which was sent to the clearing Bank and it bounced on account of "Insufficient Funds" and the bouncing memo dated 20.4.2022 was issued by the ICICI Bank and was sent to the account holder by DTDC courier vide POD No.5311190k which inadvertently was left out to be signed. 4. 4. That the aforesaid bouncing memo was electronically generated as per CTS guidelines where it clearly bears the remark of "Insufficient Funds" however inadvertence in issuing the memo is highly regretted by the ICICI Bank and the bank apologizes for the same and undertakes that it will never happen in any future transaction. 5. That the ICICI Bank being a responsible law abiding and prudent bank is issuing another bouncing memo of the same date in order to regularize the irregularity in issuing the bond memo and further undertakes not be repeat its inadvertent mistake in future. Photocopy of the duplicate bouncing memo is being filed herewith as Annexure-SCA 1 to this short counter affidavit. (Original fresh bouncing memo will be presented before this Hon'ble Court at the time of hearing)." 11. Now in light of averments made by the Bank in the counter affidavit, it is very much clear that letter is not forged document and cheque was produced before the Bank and dishonoured due to insufficient fund, therefore, requirement of Section 146 of Act is fulfilled and unsigned letter so issued by the Bank cannot be ground for rejecting the proceedings under Section 138 of Act, 1881. 12. I have also perused the judgment of Delhi Court in the case of Guneet Bhasin (Supra). Relevant paragraph of the said judgment is quoted hereinbelow:- "9. The cheque return memo is a memo informing the payee's banker and the payee about the dishonour of a cheque. When the cheque is dishonored, the drawee bank immediately issues a cheque return memo to the payee's banker mentioning the reason for non-payment. The purpose of the cheque return memo is to give the information of the holder of the cheque that his cheque on presentation could not be encashed due to the variety of reasons as mentioned in the cheque return memo. As per the Section 146 of the N.I. Act, the cheque return memo on presentation presumed the fact of dishonour of the cheque unless and until such fact is disapproved. Neither section 138 nor the Section 146 of the NI Act has prescribed any particular from of cheque return memo. As per the Section 146 of the N.I. Act, the cheque return memo on presentation presumed the fact of dishonour of the cheque unless and until such fact is disapproved. Neither section 138 nor the Section 146 of the NI Act has prescribed any particular from of cheque return memo. The Section 138 of the NI Act does not mandate any particular form of cheque return memo which is nothing but a mere information given by the Banker of the due holder of a cheque that the cheque has been returned as unpaid. If the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque return memo as invalid or illegal. The cheque return memo is not a document which is not required to be covered under Section 4 of the Bankers Book (Evidence) Act, 1891. If there is any infirmity in the cheque return memo, it does not render entire trial under Section 138 of NI Act as nullity." 13. From perusal of the same, it is apparently clear that if the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque as invalid or illegal. Further, if there is any infirmity in the cheque or letter, it does not render entire trial under Section 138 of Act, 1881 as nullity. 14. After going through the provision of Section 146 of Act, 1881, counter affidavit filed on behalf of bank and judgment of Delhi Court in the case of Guneet Bhasin (Supra), this Court is of the firm view that in case cheque return memo is not having signature and stamp of the bank, but it is validly issued by the bank, that would not render the proceeding of Section 138 of Act, 1881 as invalid or illegal. 15. In view of above facts mentioned hereinabove as well as law discussed hereinabove, this Court finds no good ground to entertain the application and same lacks merit and is, dismissed. No order as to costs. 16. So far as bank is concerned, there is carelessness on its part, therefore, this Court is issuing direction to Highest Authority of Bank i.e. CEO/M.D. of ICICI., Bank to issue order/letter/circular to all Branch Managers for being more careful while issuing such letters maximum within two weeks from the date of production of certified copy of this order. 16. So far as bank is concerned, there is carelessness on its part, therefore, this Court is issuing direction to Highest Authority of Bank i.e. CEO/M.D. of ICICI., Bank to issue order/letter/circular to all Branch Managers for being more careful while issuing such letters maximum within two weeks from the date of production of certified copy of this order. In case such type of mistake is repeated by any officer of the Bank, he is directed to take strict action against the erring officer or employee in accordance with law. 17. Sri Manish Trivedi, learned counsel for the ICICI-Bank is directed to send the copy of this order to CEO/M.D. of ICICI Bank forthwith for immediate compliance.