Case called out in the revised list. No one has appeared on behalf of the applicant as well as learned counsel for the opposite party to argue the case.
This Court on 4.7.2014, has passed the following order :
"Case called out in the revised list. Neither learned counsel for the applicant nor learned counsel for the complainant are present to argue this case. Learned Additional Advocate appearing on behalf of the State is present.
On 22.4.2014, the following order was passed by the another Bench of this Court:-
"List has been revised. Learned counsel for the applicant is not present. Sri Deepak Kumar Verma holding brief of Sri S.R. Verma, learned counsel for the opposite party no. 2 is present.
A perusal of the record shows that on 8.3.2010 an order was passed for staying further proceedings of Case No. 956 of 2009, under Section 138 N.I. Act, pending in the court of M.M. Xth, Kanpur Nagar till the next date of listing but the order sheet shows that after 8.3.2010, the interim order dated 8.3.2010 was not extended. In the meantime, an application dated 10.7.2011 was filed for vacation of the stay but that application has not been disposed of.
List on 30.4.2014 peremptorily for hearing on the stay vacation application."
From the perusal of the record, it appears that the Stay Vacation Application is still pending for consideration and no rejoinder affidavit has been filed on behalf of the applicant.
Let the case be listed peremptorily in the next cause list.
In case, no rejoinder affidavit is filed on the next date of listing, this Court will be constrained to pass the order deciding the case on merits itself."
The instant petition is filed with a prayer to quash the proceedings of complaint case no. 956 of 2009 under Section 138 Negotiable Instruments Act (in short referred as N.I. Act), P.S. Govind Nagar, District Kanpur Nagar pending in the Court of M.M. Xth Kanpur Nagar.
The factual matrix in short conspectus is that opposite party no. 2 had filed a complaint against the applicant under Section 138 of this Act stating therein that the applicant had taken financial assistance from the complainant and to repay the liability, the applicant had paid three cheques bearing no. 157755 dated 24.8.2006 amounting to Rs. 60,000/-, cheque bearing no. 157756 dated 30.8.2006 amounting to Rs. 60,000/- and cheque no. 157757 dated 4.9.2006 amounting to Rs. 65,000/-. Cheques were duly issued under signature of the accused-appellant and were drawn on Bank of India, Transport Nagar, Kanpur in favour of the complainant. When the cheques were presented, for encashment the same were returned back from the Bank with the endorsement 'Insufficient Fund' on 4.10.2006. The complainant had given notice to the applicant on 13.10.2006 through his counsel with registered A.D. Post for payment of the total amounts of cheques Rs. 1,85,000/- within fifteen days from the date of receipt of notice. Despite the service of notice, neither payment was made nor any reply was given by the applicant. Hence, the opposite party no. 2 had left no other alternative remedy but to file a complaint against the applicant under Section 138 of the Act.
The applicant has challenged the aforesaid proceeding by filing the present 482 Cr.P.C. Petition at the time of admission while obtaining interim order of stay on 8.3.2010 it was agrued on his behalf by the counsel that the date of filing of complaint has not been mentioned in the complaint and the date of service of notice has not been mentioned in the complaint.
In order to decide the aforesaid twin objection notice was also issue to the opposite party no. 2 who in reply thereto appeared and filed a counter affidavit alongwith stay vacation application on 19.7.2011 but no rejoinder affidavit has been filed. The interim order dated 8.3.2010 was passed staying the proceeding of the instant complaint case till the next date of listing but after 8.3.2010 the order was never extended. Hence the case was listed peremptorily for hearing on the stay vacation application.
Despite the case has been listed today peremptorily, neither any counsel has appeared to argue the case nor any rejoinder affidavit has been filed. Therefore, this court is constrained to pass the order deciding the case on merits after hearing the learned AGA appearing on behalf of the State.
Learned AGA has contended that summoning order has been passed on the basis of the nature of allegations made against the applicants as the cheques which were issued by the applicant were dishonored by the Bank on account of insufficiency of fund in her account. Therefore, a prima facie offence under Section 138 N.I. Act has been made out against the applicants and after the expiry of the period of statutory notice as provided under Section 138 N.I. Act, the complainant had filed the complaint against the applicant. Hence there is no illegality or perversity in the order summoning the applicant to face trial.
On the basis of the aforesaid facts, to decide the controversy the relevant provision prescribed U/S 138 and 142 of the Act is necessary to state which reads as under :-
"138. Dishonor of cheque for insufficiency, etc., of funds in the accounts.
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 honor 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 a term which may extend to one year, 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, within fifteen 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.
142. Cognizance of offence:-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause -of- action arises under clause (c) of the proviso to section 138.
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."
In the light of the language used in Section 138, this court finds five components in section 138, namely, 1. Drawing the cheque, 2. presentation of the Cheque to the bank, 3. returning the cheque unpaid by the drawer bank, 4. given the notice in writing to the drawer of the cheque demanding payment of the amount and 5. failure of the drawer to make payment within fifteen days of the receipt of the notice. Thus, the offence under Section 138 of the Act would be completed only with the concatenation of all the above components. In the present case, the complaint was maintainable as it was filed satisfying all the above ingredients as laid down in Section 138 and 142 of the N.I. Act.
From the perusal of the counter affidavit it is evident that the registered notice was given on 13.10.2006 through his counsel Sri Satish Chandra Kohil, Advocate, through registered post A.D. calling upon the applicant to make payment of the disputed cheques total amounting to Rs. 1,85,000/- to the complainant within fifteen days of the receipt of the said notice. The applicant even after the service of notice did not pay the amount of the impugned cheques as such the complainant is left with no other alternative remedy but to file the present complaint.
The registered notice was given through counsel on 13.10.2006 and was received by the applicant on 14.10.2006 which is evident from the reply made in para-7 of the counter affidavit and the certificate of the Postal Department annexed as C.A.-1. The complaint was filed on 22.11.2006. The photocopy of the complaint which has been filed as Annexure-2 to the counter affidavit wherein the endorsement of the munsarim is that the case was registered on 21.11.2006 the affidavit in support of the complaint was filed before the Court on 21.11.2006. Thus, there is no violation of any statutory provision of Section 138 N.I. Act. Nor there is any violation of the provisions of the Section 142 N.I. Act.
Thus it is an admitted fact that the cheque was given by the applicant in favour of the complainant and when the cheque was presented for encashment the same was returned by the bank with the endorsement of insufficient fund on 4.10.2006. The complainant given the notice to the applicant on 13.10.2006 through his counsel within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The applicant failed to make the payment in due course of the cheque amount within fifteen days of the receipt of the said notice and after expiry of the statutory period of notice as provided under Section 138-C, the cause of action accrued to the complainant to file the complaint thus the offence is complete and the complainant had the right to institute criminal proceedings against the drawer of the cheque.
From the perusal of the order dated 17.1.2007 passed by M.M. Court No. 3, Kanpur Nagar. It appears that the affidavit in support of the complaint of the complainant and other documents i.e. photocopy of the notice, receipt of the registered notice, bank memo, copies of three original cheques and the receipt of the postal department were filed and on the basis of which, the court below had arrived at conclusion that prima facie offence is made out against the applicants.
The order summoning the applicant has been passed after adhering to the provision of law, even otherwise the factual dispute, if any, cannot be decided in exercise of power under Section 482 Cr.P.C. which is the subject matter of trial.
Therefore, in view of the above prolix discussion, I am of the opinion neither there is any illegality or perversity in the judgement and order passed by the court below summoning the applicant to face trial under Section 138 N.I. Act nor there is any abuse of the process of law is discernible from the order of the learned Magistrate.
This petition lacks merit and is accordingly dismissed.
Interim order granted earlier is hereby vacated.
Office is directed to communicate this order to the court below through FAX. The court below is directed to proceed further in accordance with law.
Order Date :- 11.7.2014 AS