Court No. - 15
Case :- APPLICATION U/S 482 No. - 32996 of 2018 Applicant :- Kalu Ram Tyagi Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Uma Nath Pandey Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Uma Nath Pandey, learned counsel for the applicant and Sri M.P. Singh Gaur, learned A.G.A. for the State and perused the record.
This application under Section 482 Cr.P.C. has been filed seeking the quashing of order dated 30.05.2018 passed by III A.C.J.M., Gautam Buddh Nagar as well as entire proceedings in Complaint Case No. 65 of 2018, Mehar Chandra Tyagi Vs. Kalu Ram Tyagi under Section 138 of N.I. Act, 1881, Police Station Phase-II, Noida, District Gautam Buddh Naga.
The contention of the learned counsel for the applicant is that O.P. No.2 had filed a complaint on 11.01.2018 with an allegation that the applicant accused had taken Rs. 4,90,000/- from him as loan and when he demanded back the said amount, the accused applicant had issued a cheque No. 034359 dated 30.11.2017 drawn at Corporation Bank, Bhangel Branch, District Gautam Budh Nagar but when the same was presented by him in his bank i.e. Union Bank of India, the branch Bhangel, District Gautam Budh Nagar, it was dishonoured on 4.12.2017 with an endorsement that drawer of the cheque had directed payment to be stopped. When the complainant received the said information from bank, he sent legal notice dated 18.12.2017 through his advocate to the accused applicant but in-spite of that the payment was not made of the cheque amount. Hence, the proceedings under Section 138 N.I. Act has been initiated by the O.P. No.2 against the accused applicant. Learned counsel further stated that learned court below has in a routine manner, summoned the accused applicant despite the fact that the offence under Section 138 N.I. Act was not made out as the cheque which is alleged to have been dishonoured was not dishonoured on account of insufficiency of fund in his account rather his bank was directed not to honour that cheque. Further he has argued that there was a deal made between the applicant and O.P. No.2 pursuant to which, a cheque was issued as advance but after the issuance of the cheque, O.P. No.2 was not ready to transfer the land in favour of the applicant at the agreed rate of consideration due to his having become greedy and thereafter only a letter was dispatched by the accused applicant to his bank directing it to not make the payment of the said cheque, therefore, the impugned summoning order deserves to be quashed as the cheque did not bounce because of insufficiency of fund in the bank account of the accused applicant rather the same could not be en-cashed due to the direction on the part of the accused applicant to his bank not to honour that cheque regarding this, he has relied upon the case of Raj Kumar Khurana Vs. State of (NCT of Delhi) and another (2009) 6 SCC 72 in which attention was drawn towards para 11 and 12 of this case which are quoted herein below:
"11. Section 138 of the Act moreover provides for a penal provision. A penal provision created by reason of a legal fiction must receive strict construction. (See R. Kalyani v. Janak C. Mehta and DCM Financial Services Ltd. v. J.N. Sareen). Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such non-payment may either be:
(i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or
(ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
Before a proceeding thereunder is initiated, all the legal requirements therefor must be complied with. The court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with.
12. The parameters for invoking the provisions of Section 138 of the Act, thus, being limited, we are of the opinion that refusal on the part of the bank to honour the cheque would not bring the matter within the mischief of the provisions of Section 138 of the Act."
Learned counsel for the applicant further stated that if proceedings are allowed to continue, that would amount to an abuse of process of court.
Learned A.G.A. on the other hand vehemently opposed the quashing of the impugned order and stated that in the ruling placed upon by the learned counsel for the applicant itself, it is mentioned in para 13 that the Court while exercising its jurisdiction for taking cognizance of an offence under Section 138 of N.I. Act, is required to consider only allegationd made in the complaint petition and the evidence of the complainant and his witness, if any. Therefore, in the present case as per allegations made against the accused applicants, the above-mentioned amount had been borrowed for return of which, the impugned cheque is alleged to be issued by the accused applicant in favour of the O.P. No.2 which has got bounced on account of a direction given by the accused-applicant to his bank not to honour that cheque which would be well covered under the ingredients of Section 138 of N.I. Act and for this reliance has been placed from his side upon Rangappa Vs. Sri Mohan (2010) 11 SCC 441 in which attention was drawn towards para 18 which is as follows:
18. Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act. With respect to the facts of the present case, it must be clarified that contrary to the trial court's finding, Section 138 of the Act can indeed be attracted when a cheque is dishonoured on account of `stop payment' instructions sent by the accused to his bank in respect of a post-dated cheque, irrespective of insufficiency of funds in the account. This position was clarified by this Court in Goa Plast (Pvt.) Ltd. v. Chico Ursula D'Souza, (2003) 3 SCC 232, wherein it was held: (SCC pp.232g-233c) "Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. The said provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation which serves the object of the statute. A post-dated cheque will lose its credibility and acceptability if its payment can be stopped routinely.
The purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act. A contrary view would render S. 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong. "
In view of the above position of law, it is absolutely clear that the law which has been relied upon by the learned A.G.A. is of subsequent period and it clearly lays down that in case the cheque gets bounced on account of accused directing his bank to stop payment of the said cheque, even that would be covered as an offence under Section 138 of N.I. Act and at this stage only version of the complaint has to be seen which clearly indicates that the above- mentioned amount was borrowed by the accused from him and which was sought to be returned through issuing the impugned cheque which got bounced. Hence, at this stage, this Court does not find any infirmity in the impugned order. The other points raised by the learned counsel for the applicant that the matter relates to some deal in respect of which the said cheque was issued and the said deal could not materialize hence he directed his bank to stop the payment of said cheque is a matter of fact on which the evidence will have to be led by him in defence, then only the Court can come to any conclusion. The case law relied upon by the learned counsel for the applicant contains the facts which are different from the facts of the present case, hence, no benefit of the said ruling can be given to him.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
This application u/s 482 Cr.P.C. is, accordingly, rejected.
Order Date :- 20.9.2018 A. Mandhani