Court No. - 14
Case :- APPLICATION U/S 482 No. - 37649 of 2010 Applicant :- M/S.S.G.Exports Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Manish Tiwari,Ashwini Kumar Awasthi,Chitranshu Srivastav Counsel for Opposite Party :- Govt.Advocate,Maqsood Ahmad Beg
Hon'ble Abhai Kumar,J.
Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the opposite party no. 2 and perused the record.
This petition under Section 482 Cr.P.C. has been preferred with the prayer to quash the entire proceedings of Complaint Case No. 1995 of 2008 and set aside the order dated 2.6.2008 passed by Metropolitan Magistrate, Court No. VIIth Kanpur Nagar in M/s Ramshi International Vs. M/s S.G. Exports, under Section 138 of N.I. Act, Police Station Chakeri, District Kanpur Nagar pending in the court of A.C.M.M. VIIIth Kanpur Nagar.
Brief facts of the case are as follows:
Opposite party no. 2 initiated a complaint case aforesaid against the applicant on the ground that the cheque issued by the applicant in reference to payment that was made for supply of goods, has been dishonoured, when present before the bank. After getting the memo from the bank, a notice was sent to the applicant for making the payment of dishonoured cheque but same was not made and accordingly complaint has been filed.
It is submission of the learned counsel that in the complaint, it was required to mention the date of issuance of legal notice by the opposite party no. 2 and also date of receipt of legal notice but both the points are lacking and accordingly, the proviso (b) & (c) of Section 138 of the N.I. Act has not been made.
The trial court has summoned the applicant in a mechanical manner without taking any evidence under Section 202 Cr.P.C. It is further contention of the learned counsel that Cheque Nos. 489511 and 489513 were encashed by the opposite party no. 2 way back on 20.12.2006 whereas Cheque in question bearing No. 489512 has been presented only on 3.1.2008 after a gap of 13 months, which clearly indicates that aforesaid cheque was retained and misused by the opposite party no. 2 with mala fide intention. It is also submission of the learned counsel that aforesaid cheque was not given to opposite party no. 2 as any sort of consideration, so proceeding under Section 138 of N.I. Act is not maintainable.
The last contention of the learned counsel is regarding the issuance of non-bailable warrant against the applicant and it has been submitted by the learned counsel that no summon or any process had ever been served upon the applicant and applicant was not having knowledge regarding the pendency of the case, so issuance of non-bailable warrant against the applicant is misuse of process.
Whereas learned counsel for the opposite party no. 2 vehemently opposed the contention of the learned counsel for the applicant and submitted that opposite party no. 2 is holder of the cheque drawn by the applicant and there will be presumption in favour of holder of the cheque as per Section 139 of the Act. It is further argued by the learned counsel that evidence that was produced by the opposite party no. 2 by way of affidavit and documentary proof, sufficient prima facie case was made against the applicant and that is why applicant has been summoned by the trial and the fact that no evidence has been taken under Section 202 Cr.P.C., will not be of any avail. It is next contended by the learned counsel that the contention of the learned counsel for the applicant is not tenable so far as it relates regarding the issuance of cheque not for any sort of consideration, is disputed question of fact and same cannot be decided in a petition under Section 482 Cr.P.C. Whether cheque was presented delayed with mala fide intention is also a question of fact and same can also be decided by the trial court when evidence is produced before the trial court. It is lastly contended by the learned counsel that applicant was avoiding the proceeding before the trial court and that is why trial court rightly issued non-bailable warrant against the applicant.
The issuance of cheque has not been denied by the applicant and accordingly a presumption in favour of holder of the cheque/opposite party no. 2, will be made. Whether cheque has been issued for any consideration regarding the business transactions or has been issued otherwise, are disputed question of facts and same can be decided by the trial court when evidence is produced before it and same cannot be decided in the petition under Section 482 Cr.P.C.
In case evidence under Section 200 Cr.P.C. by way of affidavit of the complainant and after considering documents in support of the complaint, court found prima facie case against the applicant, same cannot be said to be illegal or without jurisdiction in absence of any evidence under Section 202 Cr.P.C.
The last and foremost point is regarding the compliance of proviso (b) & (c) of Section 138 of N.I. Act and to fortify its submission learned counsel for the applicant has based his arguments on the following decisions of the Apex Court.
1. Yogendra Pratap Singh Vs. Savitri Pandey and another reported in (2014) 10 SCC 713;
2. Dashrath Rupsingh Rathod Vs. State of Maharashtra and another reported in 2014 (2) G.L.H. 689.
Both the laws put forward by the learned counsel for the applicant are not specifically applicable in the present case.
In Yogendra Pratap Singh (supra), Apex Court propounded the principle where complaint has been filed before the expiry of fifteen days of the service of notice for demanding the payment. It is submission of the learned counsel that unless date of receipt of notice is given in the complaint, then how it can be inferred that complaint has been filed after fifteen days of the receipt of notice. This fact is a disputed question of fact and during the trial it can be proved that notice has been sent and has been served upon the applicant on a particular date and only then trial court can draw conclusion whether complaint has been filed fifteen days after the service of notice or prior to that and can pass a suitable order in this regard.
Similarly, in Dashrath Rupsingh Rathod (supra), the Hon'ble Apex Court was dealing with the matter regarding the jurisdiction of the court as to which place complaint can be filed after the cheque is being dishonoured. The proviso (b) & (c) of Section 138 of N.I. Act was referred in the above case by Hon'ble Apex Court in reference to jurisdiction of the court where complaint can be filed and has not specifically considered the point whether mentioning of the receipt of the date in the complaint is mandatory or not.
Although, in the complaint it has not been mentioned as to when notice has been sent but it has been written in the complaint that notice was sent to the applicant. The papers which were annexed alongwith the complaint, postal receipt is also filed and from that, date of sending the notice can very well be deciphered. In this regard law propounded by Hon'ble Apex Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and another, Appeal (crl.) 767 of 2007 decided on 18 May, 2007 is relevant.
In the facts as narrated above, if we put them to be tested as per law propounded in the above referred case of C.C. Alavi Haji (supra), then we find that sufficient endorsement is there in the complaint and complaint cannot be dismissed for want of sufficient endorsement regarding the service upon the applicant.
Apex Court while dealing with the matter also observed that as to why Section 138 of the Act was enacted. The supreme Court observed as follows:
"4. Chapter XVII of the Act originally containing Sections 138 to 142 was inserted in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 with the object of promoting and inculcating faith in the efficacy of banking system and its operations and giving credibility to negotiable instruments in business transaction. The introduction of the said Chapter was intended to create an atmosphere of faith and reliance on banking system by discouraging people from not honouring their commitments by way of payment through cheques. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so. To make the provisions contained in the said Chapter more effective, some more Sections were inserted in the Chapter and some amendments in the existing provisions were made. Though, in this reference, we are not directly concerned with these amendments but they do indicate the anxiety of the Legislature to make the provisions more result oriented. Therefore, while construing the provision, the object of the legislation has to be borne in mind."
The Apex Court further observed regarding the need of Section 138 of the Act as follows:
"6. As noted hereinbefore, Section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so. Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. However, with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under Section 138 of the Act has been made subject to certain conditions. These conditions are stipulated in the proviso to Section 138 of the Act, extracted above. Under Clause (b) of the proviso, the payee or the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. Under Clause (c), the drawer is given fifteen days time from the date of receipt of the notice to make the payment and only if he fails to make the payment, a complaint may be filed against him. As noted above, the object of the proviso is to avoid unnecessary hardship to an honest drawer. Therefore, the observance of stipulations in quoted Clause (b) and its aftermath in Clause (c) being a pre-condition for invoking Section 138 of the Act, giving a notice to the drawer before filing complaint under Section 138 of the Act is a mandatory requirement."
The matter before the larger bench was referred for the consideration, whether in absence of any averments in the complaint to the effect that the accused had a role to play in the matter of non-receipt of legal notice; or that the accused deliberately avoided service of notice, same could have been entertained keeping in view the decision of the Court in D. Vinod Shivappa Vs. Nanda Belliappa.
The Apex Court after considering the case of Bhaskaran and D. Vinod Shivappa, concluded as follows:
"15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.
16. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa (supra), this Court observed: One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons.
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act. "
By applying Section 27 of General Clauses Act as well as Section 114 of Indian Evidence Act and also taking view the law propounded by Hon'ble Apex Court, it can very well be said that requirement of proviso (b) of Section 138 of the Act has been made by the opposite party no. 2 and on the basis of that it cannot be said that petition is bad in law.
In view of Section 139 of Act, there is presumption in favour of opposite party no. 2, who is holder of the cheque and it is admitted fact that cheque is dishonoured due to insufficient funds. Notice has also been sent by registered post and in the circumstances, a bonafide litigant is to be given protection and by implicacies and necessities of the Act, not to be put to any hardship.
Accordingly, this Court is of the view that contention putforward by the learned counsel for the applicant, that complaint is bad in law due to non specification of service of notice upon the applicant and under proviso (b) & (c) of Section 138 of the Act is not tenable.
If any fact is being alleged in the complaint and same is being denied by the applicant and when these are based upon facts, same are disputed question of facts and cannot be entertained in petition under Section 482 Cr.P.C.
So far as the contention of the learned counsel regarding the enquiry under Section 202 Cr.P.C. is concerned, it can be said that trial court after taking the stock of the statement of complainant upon affidavit under Section 200 Cr.P.C. as well as on the documentary proof, find the prima facie case sufficient against the applicant, then it cannot be said that any illegality has been caused.
On the basis of above, this Court is of the opinion that present petition has been filed just to avoid defeat complaint that has been filed before the court concerned and not to bring the right facts before the court concerned so as to face liability regarding the payment of use amount. The petition is misconceived and malafide and is liable to be dismissed. It is, accordingly, dismissed.
However, it is directed that if any recall/bail application is being moved by applicant within one month from today, same will be decided expeditiously and due weightage will be given to the fact that any process is being served upon applicant or not.
Order Date :- 26.4.2018 Ranjeet Sahu