Court No. - 44
Case :- APPLICATION U/S 482 No. - 1152 of 2018 Applicant :- Rahul Sharma Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sanjay Kr. Srivastava,Ajay Kr. Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Sanjay Kumar Srivastava, learned counsel for the applicant and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 13.12.2016, passed by the Additional Court First, Ghaziabad in complaint Case No. 674 of 2016 (Ravindra Singh Vs. Rahul Sharma), under section 138 N.I. Act, P.S. Indrapuram, District Ghaziabad as well as the entire proceedings of above mentioned complaint case. The applicant has also challenged the order dated 15.12.2017, whereby the objection filed by the applicant in the above mentioned complaint case, questioning the validity of the proceedings has been rejected by means of the order dated 15.12.2017.
Learned counsel for the applicant invited the attention of the Court to the returned memo dated 31.5.2016 issued by the concerned bank. A perusal of the same goes to show that the disputed cheque was not encashed on the ground that the account has been closed. Referring to the provisions of Section 138 N.I. Act, learned counsel for the applicant submits that the closer of the account, which is the ground for encashment of the cheque, will not result in attracting the criminality attached to an offence under section 138 N.I. Act. Reliance is placed upon the judgement of the Apex Court in the case of Raj Kumar Khurana vs State Of (Nct Of Delhi) & Anr, reported in 2009 6 SCC 72, wherein the following has been observed in paragraph 10, 11, 12, 13 and 14:
"10.
........
A bare perusal of the aforementioned provision would clearly go to show that by reason thereof a legal fiction has been created. A legal fiction, as is well known, although is required to be given full effect, has its own limitations. It cannot be taken recourse to for any purpose other than the one mentioned in the statute itself. InState of A.P. v. A.P. Pensioners' Assn. [(2005) 13 SCC 161 : 2006 SCC (L&S) 666] this Court held: (SCC p. 169, para 30) In other words, all the consequences ordinarily flowing from a rule would be given effect to if the rule otherwise does not limit the operation thereof. If the rule itself provides a limitation on its operation, the consequences flowing from the legal fiction have to be understood in the light of the limitations prescribed. Thus, it is not possible to construe the legal fiction as simply as suggested by Mr Lalit."
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. (SeeR. Kalyani v. Janak C. Mehta [(2009) 1 SCC 516 and DCM Financial Services Ltd. v. J.N. Sareen [(2008) 8 SCC 1. 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.
13. The court while exercising its jurisdiction for taking cognizance of an offence under Section 138 of the Act was required to consider only the allegations made in the complaint petition and the evidence of the complainant and his witnesses, if any. It could not have taken into consideration the result of the complaint petition filed by Respondent 2 or the closer report filed by the Superintendent of Police in the first information report lodged by the appellant against him.
14. Before us a contention has been raised that the appellant did not have sufficient funds in his bank account. Such an allegation has not been made in the complaint petition. In any event, it was for the Bank only to say so, as the complainant is not supposed to have knowledge in regard to the amount available in the account of the appellant."
Having heard the learned counsel for the applicants and the learned A.G.A. for the State as well as upon perusal of the facts and circumstances of the case as brought on record, matter requires consideration.
Issue notice to the opposite party No.2, calling upon him to file counter affidavit.
List on the date fixed in the notice.
Until further orders of court, further proceedings of above mentioned complaint case, shall remain stayed.
Order Date :- 18.8.2018 Arshad