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2024 DIGILAW 417 (UTT)

Ajay Sharma v. State of Uttarakhand

2024-06-14

RAKESH THAPLIYAL

body2024
JUDGMENT : Rakesh Thapliyal, J. 1. The instant C 482 application has been preferred by the applicant challenging the entire proceedings of Complaint Case No. 1033 of 2020 (Meenakshi Madaan Vs. Ajay Sharma and others) pending in the court of Addl. Civil Judge (Senior Division) / Addl. Chief Judicial Magistrate, Roorkee, District Haridwar. 2. Brief facts of the case are that a complaint was filed by respondent no. 2 – Smt. Meenakshi Madaan under Section 138 of the Negotiable Instruments Act, 1881 against the present applicant, his wife and two others for dishonour of cheque bearing cheque no. 542203 for an amount of Rs.24,00,000/- on 07.10.2020 wherein Addl. Civil Judge, (Senior Division), Roorkee, took cognizance and summoned the accused including the present applicant by order dated 18.01.2021. 3. Learned counsel for the applicant submits that applicant and respondent no. 2 & her husband have good business relation with each other and due to this relation on 15.03.2018, applicant and other co-accused persons came to the house of the respondent no. 2 – complainant and asked for Rs.30,00,000/- for one year for the purpose of enlarging the scope of their business. Subsequently, respondent no. 2 – complainant and her husband transferred an amount of Rs.24,00,000/- to the firm of the applicant namely M/s Anshika Ceramics and Rs.3,00,000/- were given in cash to the applicant and other co-accused persons. It is further submitted that respondent no. 2 when asked for return the amount, then applicant gave a cheque of Rs.24,00,000/- to the complainant of Punjab National Bank, BSM College Chowk Branch, Roorkee. On 14.01.2020, respondent no. 2 – complainant presented this cheque in the Bank, however, the said cheque was returned back with an endorsement “funds insufficient” and the said memo was given by the bank on 14.01.2020, thereafter, respondent no. 2 informed the applicant and other co-accused persons that cheque was dishonoured, on this the applicant and other accused persons requested the respondent no. 2 to present the cheque again after a month and on such request, again the same cheque was presented by respondent no. 2 for encashment on 14.02.2020 but the same was again returned back with an endorsement “funds insufficient”. Thereafter, respondent no. 2 to present the cheque again after a month and on such request, again the same cheque was presented by respondent no. 2 for encashment on 14.02.2020 but the same was again returned back with an endorsement “funds insufficient”. Thereafter, respondent no. 2 sent a joint legal notice to the applicant and other co-accused persons through her Advocate on 29.02.2020 wherein a demand was raised for the amount, as shown in the cheque within 15 days from the date of receipt of notice. Thereafter, when the amount as shown in the cheque was not paid by the applicant and other co-accused persons, a complaint was filed under Section 138 of the Negotiable Instruments Act, 1881 on 07.10.2020 on which, the trial court took cognizance and issued summons to the accused persons. 4. Learned counsel for the applicant submits that the said complaint was filed on false and frivolous pleas despite the fact that there is no legally enforceable debt and he further submits that applicant and respondent no. 2 have good business relations for the last so many years and various business transactions have been made between both of them and applicant has given various cheques, as security cheque and one of which was misused by respondent no. 2 and under the garb of this that the cheque in question, is only a security cheque, present complaint has been filed under Section 138 of the Negotiable Instruments Act, 1881. 5. It is further submitted by the learned counsel for the applicant that in fact, the applicant’s account was declared dormant and no transaction was taken place since 2018 and the applicant has transferred more than Rs.19,00,000/- in the account of respondent no. 2 from different accounts in the year 2017 and on her asking for business support, respondent no. 2 was having liability of paying Rs.24,00,000/- along with interest to the applicant’s firm which respondent no. 2 transferred on 19.03.2018 and the amount shown in the cheque, is the amount which the respondent no. 2 was under the obligation to pay but respondent no. 2 misused the security cheque given by the applicant’s firm to respondent no. 2 and when the applicant’s firm has demanded the return of the said security cheque, then respondent no. 2 informed that the said cheque has been lost. 6. 2 was under the obligation to pay but respondent no. 2 misused the security cheque given by the applicant’s firm to respondent no. 2 and when the applicant’s firm has demanded the return of the said security cheque, then respondent no. 2 informed that the said cheque has been lost. 6. Learned counsel for the applicant further submits that in order to extort the money from the applicant present complaint has been filed by the respondent no. 2 with ulterior purposes and motive based on the false and frivolous ground. He further submits that proceedings, as initiated pursuant to the complaint filed by the respondent no. 2 under Section 138 of the Negotiable Instruments Act, 1881, is absolutely an abuse of process of law and the Addl. Civil Judge (Sr. Div.), Roorkee while taking cognizance on the said complaint has not applied his judicious mind and in a mechanical manner summoned the present applicant. 7. After hearing the arguments of learned counsel for the applicant and after taking into consideration the allegations, as levelled in the complaint and other evidence brought on record, this Court is of the view that in the present C 482 application, applicant has not pleaded why proceedings initiated under Section 138 of the Negotiable Instruments Act, 1881 should not be proceeded against the applicant, particularly, when he has not denied this fact that cheque was issued under his signatures, as partner of the firm namely ‘Sagar Brothers’ and firm as well as partners have been impleaded as party in the complaint and this fact the applicant has himself admitted that present applicant is one of the partners of the said firm, which is evident from the averments as made in paragraph 11 of the affidavit. 8. In paragraph 10 of the affidavit, it is stated that in fact, applicant has transferred more than Rs.19,00,000/- to respondent no. 2 from different accounts in the year 2017 on her asking for business support and in fact, respondent no. 2 was having liability to pay Rs.24,00,000/- with interest to the applicant firm and cheque in question, is nothing but a security cheque is appears to be a concocted story without any basis and substance. 9. The averment, as given in paragraph 10 of the affidavit, appears to be without any substance and document. 2 was having liability to pay Rs.24,00,000/- with interest to the applicant firm and cheque in question, is nothing but a security cheque is appears to be a concocted story without any basis and substance. 9. The averment, as given in paragraph 10 of the affidavit, appears to be without any substance and document. As observed in the preceding paragraphs, this fact is nowhere denied by the applicant that the cheque is question was never been issued by the applicant but what the applicant has stated that it was a security cheque and when he asked respondent no. 2 to return it back, then respondent no. 2 said that the said cheque has been lost. 10. It is a settled principle of law that once a cheque is issued and upon getting dishonoured and a statutory notice is issued, it is for the accused to dislodge the legal presumption available under Sections 118 and 139 of the N.I. Act and furthermore, whether the cheque, in question, has been issued for legal debt or not, itself prima facie, is a matter of evidence and could not have been adjudicated in an application filed by the accused under Section 482 of the CrPC. Recently, the Hon’ble Supreme Court in Criminal Appeal No. 516 of 2024 (Atamjit Singh Vs. State (NCT of Delhi) and another) 2024 INSC 84 decided on 22.01.2024 gave reference of earlier decision in the case of Yogesh Jain Vs. Sumesh Chadha, 2022 SCC Online SC 2195 wherein the Hon’ble Supreme Court has observed about the scope of interference by the High Court in the proceedings under Section 138 of the Negotiable Instruments Act, 1881. By giving reference of the said judgment the Hon’ble Supreme Court was of the view that classification of the underlying debt or liability as being barred by limitation is a question that must be decided based on the evidence adduced by the parties and therefore, this is mixed question of law and fact which ought not to be decided by the High Court exercising jurisdiction under Section 482 of the CrPC. 11. 11. In the present case, whether the amount shown in the cheque, in question, is in fact, a legal enforceable debt or not and whether the cheque, in question, was a security cheque or not, all these aspects are nothing but mixed questions of fact and law, and that can be decided by the trial court on the basis of evidence adduced by the parties and all these aspects cannot be examined by the High Court in exercising powers conferred by Section 482 Cr.P.C. 12. In view of the observations as made above, I do not find any merit in the present C 482 application. Accordingly, the present C 482 application is dismissed.