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2023 DIGILAW 341 (ALL)

Bharat Singh Chauhan v. State of U. P.

2023-02-02

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. Heard Sri Saurabh Singh, learned counsel for the petitioner, Sri Raj Kumar Kesari, learned counsel for the complainant, learned A.G.A. for the State and perused the material on record. 2. The present petition under article 227 of the Constitution of India has been filed by the petitioner in Complainant Case No. 895 of 2021 having its Computer No. 1240 of 2021 (Sushil Kumar Vs. Bharat Singh Chauhan) under Section 138 of the N.I. Act, Police Station Hapur Nagar, District-Hapur, pending in the court of Chief Judicial Magistrate, Hapur for quash the summoning order dated 16.9.2021 passed by the Chief Judicial Magistrate, Hapur as well as the impugned order dated 22.07.2022 passed by the Sessions Court, Hapur in Criminal Revision No. 146 of 2021 whereby the summoning order passed by the learned Magistrate has been affirmed. 3. The factual matrix of the case are that the complainant/respondent no.2 Sunil Kumar Chauhan filed a complaint to the court below under section 138 of the N.I. Act with the averment that the opposite parties had issued a cheque of Rs. 2 lacs in his favour in discharge of debt received by opposite party from the complainant in March, 2016. The complainant had lent Rs. 2 lacs to opposite party on his request, he had withdrawn the same from the account of his wife Sunita Chauhan from two different dates. The complainant had presented the said cheque to his banker on 29.12.2020 but the cheque was dishonoured with the advise of banker with endorsement "Payment stop by withdrawn". The complainant has informed the accused about this, he again presented the cheques on 19.01.2021 at S.B.I. Hapur Branch before his banker but same was again dishonoured with endorsement "Payment stop by the drawer". Thereafter, he issued notice to the accused demanding payment of the amount of cheque but accused did not pay any heed and the complaint was filed within statutory period. 4. The trial court has passed impugned summoning order dated 16.09.2021, placing reliance on statement of the complainant under section 200 Cr.P.C. and statement of witness under section 202 Cr.P.C. as well as documents available on record. The said summoning order section 200 Cr.P.C. was challenged by accused/opposite party before Sessions Court. However, Sessions Court dismissed the revision filed against the summoning order dated 22.07.2022 and affirmed the summoning order passed by the learned trial judge in the present petition. The said summoning order section 200 Cr.P.C. was challenged by accused/opposite party before Sessions Court. However, Sessions Court dismissed the revision filed against the summoning order dated 22.07.2022 and affirmed the summoning order passed by the learned trial judge in the present petition. Opposite party-accused has challenged the orders of both the court. 5. Learned counsel for the petitioner submitted that the facts giving rise to the instant application are that the applicant (Bhatija) and the opposite party no. 2 (Chacha) are related as uncle and nephew and had cordial relationship. He further submitted that there was an on-going family dispute between the opposite party no. 2 and the father of the applicant regarding some property and bank locker. As such, the opposite party no. 2 for the reason of getting out of the dispute amicably, demanded an amount to the tune of Rs. 2,00,000/-(Two Lakh) and in pursuance of the same, promised to stay out of the disputed shares in favour of applicant's father namely Ashish Singh Chauhan. He submitted that for the reason aforesaid, applicant provided a signed cheque dated 22.12.2020 bearing cheque no. 000001 of HDFC Bank, Branch-Opp BSA College, Gaushala Road, Mathura of Rs. 2,00,000/-to the opposite party no. 2. But, after receiving the aforesaid cheque the intention of the opposite party no. 2 changed drastically and an undue demand of more money and share in the property was made by him. He submitted that the applicant being aware about the evil intentions of the opposite party no. 2 moved an appropriate application before his concerning HDFC bank and got the payment of the aforesaid Cheque stopped. It is further submitted that the parties are close relatives and the said cheque was issued by the petitioner to the respondent no. 2 as a security, pursuant to some compromise entered between the parties regarding division of family property but complainant failed to honour the said compromise and by that reason the payment of cheque was stopped by the petitioner with bona fide intention. Learned counsel for the petitioner has cited Section 138 N.I. Act under Chapter XVII. 138 Dishonour of cheque for insufficiency, etc., of funds in the account. Learned counsel for the petitioner has cited Section 138 N.I. Act under Chapter XVII. 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 provisions of this Act, be punished with imprisonment for 19 [a term which may be extended 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, 20 [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.] 6. Explanation.— For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.] 6. He lastly submitted that dishonour of cheque on the ground that drawer has stopped payment of cheque and that is not included in section 138 of the N.I. Act as a ground for initiating prosecution and said cheque was not issued in discharge of any debt or other liability which is precondition for initiating prosecution under section 138 of the Act. 7. Per contra, learned counsel for the complainant/respondent no. 2 submitted that dishonour of cheque due to stoppage of payment instructed to the banker is included as a ground for prosecution under section 138 of the Act. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of the cheque of the nature referred to in section 138 for the discharge, in whole or in part, to any debt or other liability. 8. He further submitted that there is no illegality or irregularity or jurisdictional error in the impugned orders passed by the learned trial court as well as learned Revisional Court and disputed question of fact cannot be gone into while deciding the petition under Article 227 of the Constitution of India. 9. M/s. Indus Airways Pvt. Ltd. & Ors Versus M/s. Magnum Aviation Pvt. Ltd. & Anr. (2014) 12 SCC 539 has inter-alia held that it is settled proposition of law, if no legal liability exists on the date of cheque was issued then offence under Section 138 of the N.I. Act would not be attracted with respect to the said cheque. The explanation appended to Section 138 explains the meaning of the expression 'debt or other liability' for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonour of cheque due to default of drawer, as an offence, if the cheque has been issued in discharge of any debt or other liability incurred by him. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing home an offence under Section 138 in Pulsive Technologies P.Ltd Vs. State Of Gujarat & Ors Hon'ble Supreme Court on 22.08.2014 observed that Even "stop payment" instructions issued to the bank are held to make a person liable for offence punishable under Section 138 of the NI Act in case cheque is dishonoured on that count. Once the cheque is issued by the drawer, a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawee or to the bank for stoppage of the payment, it will not preclude an action under Section 138 of the NI Act by the drawee or the holder of the cheques in due course, if the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus, a court cannot quash a complaint on this ground. Whether any money is paid by the accused to the complainant is a matter of evidence. The accused has ample opportunity to probabilise his defence. 10. In the light of above discussions and observation of judgments of the Hon'ble Supreme Court the present petition under Article 277 of the Constitution of India is devoid of merit or any force is liable to be dismissed. 11. The petition is dismissed and the impugned order is affirmed accordingly.