As in both these applications, the same issues between the same parties are involved, both are being disposed of by this common order.
Heard Sri P.N. Tripathi, learned counsel for the applicant, learned A.G.A., appearing for the State and Sri Rupak Chaubey, learned counsel for opposite party no. 2. Perused the record.
The facts, in brief, are that the applicant Rubi Mehra was the sole proprietor of M/s. Radiant Services, against whom the opposite party no. 2 lodged a complaint under Section 138 of Negotiable Instruments Act on 21.11.2002, in the court of IVth Additional Chief Judicial Magistrate, Varanasi, alleging that the husband of Rubi Mehra (the applicant ) had taken some loan from opposite party no. 2, in partial repayment of which, Rubi Mehra had issued 4 cheques each amounting to Rs. 60,500/- in favour of opposite party no. 2 on 24.9.2002. All those cheques were payable from the bank account of the firm M/s. Radiant Services, of which the applicant Rubi Mehra was the sole proprietor. It was further alleged that the aforesaid 4 cheques were submitted by opposite party no. 2 in the Bank for encashment, but the same were not honoured by the bank and were returned with the remark, "account closed". After receiving the information of dishonouring of cheques, the opposite party no. 2 sent a legal notice to the applicant on 13.10.2002 which was duly received by the applicant on 18.10.2002 but when the amount in question still remained unpaid, opposite party no. 2 initiated the criminal proceedings against the applicant by lodging the aforesaid complaint.
The learned Magistrate recorded the statements of complainant and the witnesses and summoned the applicant by the impugned order dated 6.1.2003.
The legality of the aforesaid summoning order and also of the entire proceedings has been challenge in the instant application under Section 482 Cr.P.C. and prayer has been made to quash the same.
Learned counsel for the applicant has contended that the firm M/s. Radiant Services had to be closed in January, 2000 in compliance of an order dated 17.12.1999 of Reserve Bank of India, accordingly, the account of the said firm was also closed and the firm itself being closed, the applicant was not acting as proprietor of the said firm on the date of issuing cheques. Moreover, it was mandatory to surrender all unused cheques to the Bank before closing of the bank account as per rules so there was no question of issuing cheques of the said firm. The applicant has not issued any cheque and the signatures of the applicant upon the alleged cheques are forged. Learned counsel has next submitted that the applicant has not taken any loan from opposite party no. 2 which admittedly was taken by her husband in his personal capacity, who has not been summoned by the Magistrate, hence the applicant cannot be summoned under Section 138 of N.I. Act, the debt being not enforceable and not recoverable from the applicant. It is further contended that the essential ingredients of Section 138 of N.I. Act are lacking in this case. Learned counsel has contended that a perusal of Section 138 of N.I. Act reveals that it is necessary that a person must have drawn the cheque on an account maintained by him in a bank. Whereas in the present case no cheque was drawn from an account maintained by the applicant. Learned counsel has contended that the second ingredient is that the cheque should have been issued for the discharge, in whole or in part, of any legally enforceable debt or liability. Whereas in the present case, the debt in question is alleged to have taken by Sri Rajat Mehra, the husband of the applicant, in personal capacity, hence it is not an enforceable debt against the applicant and the second ingredient of Section 138 N.I. Act is also missing in this case.
In this regard, reliance has been placed by the applicant on the judgment of Jugesh Sehgal Vs. Shamsher Singh Gogi; (2009) 14 Supreme Court Cases 683 in paragraph 22 of which, the Apex Court has observed as under :-
"As already noted hereinbefore, in para 3 of the complaint, there is a clear averment that the cheque in question was issued from an account which was non-existent on the day it was issued or that the account from where the cheque was issued "pertained to someone else". As per complainant's own pleadings, the bank account from where the cheque had been issued, was not held in the name of the appellant and therefore, one of the requisite ingredients of Section 138 of the Act was not satisfied. Under the circumstances, continuance of further proceedings in the complaint under Section 138 of the Act against the appellant, would be an abuse of the process of the Court. In our judgment, therefore, the decision of the High Court cannot be sustained."
The learned counsel has also placed reliance on a judgment dated 18.11.2013 rendered by Punjab & Haryana High Court in the case of Sunil Kumar Vs. Babita passed in Crl. Misc. No. A-888-MA of 2013 in which the Punjab & High Court has held that where the complainant had given a loan of Rs. 50,000/- to the husband of the accused and on asking to return the amount, the wife issued a cheque of Rs. 50,000/-, which after presentation, was dishonoured, the wife cannot be held liable for the act of her husband. Therefore, the presumption under Section 138 of N.I. Act was rebutted by the accused.
Reliance has also been placed reliance on Mrs. Aparna A. Shah Vs. M/s. Sheth Developers Pvt. Ltd. And another; (2013)8 SCC 71 in which the Apex Court has held that no one is to be held criminally liable for the act of another.
Leaned counsel for opposite party no. 2 and learned A.G.A. have vehemently opposed both these applications by contending that closing of the aforesaid firm as well as its bank account does not affect the prosecution case, as the applicant had admittedly issued the aforesaid cheques from the account of firm. It is further contended that whether the account was closed on the date of issuance of cheque or not, is a disputed question of fact which can only be adjudicated at the time of trial and not in the present proceedings, under Section 482 Cr.P.C. Learned counsel for opposite party no. 2 has contended that all the four cheques issued by the applicant belonged to the account of firm M/s. Radiant Services, of which the applicant was sole proprietor and admittedly the cheques were given by the applicant to opposite party no. 2 as part payment of the debt taken by her husband.
Placing reliance on the law laiddown by the Apex Court in NEPC Micon Ltd. and others Vs. Magma Leasing LTD. (1999) 4 SCC 253 and Laxmi Dyechem Vs. State of Gujrat and others; (2012) 13 SCC 375, learned counsel for opposite party no. 2 has contended that the Apex Court in the aforesaid case has held in unequivocal terms that :-
"The dishonouring of the cheque on the ground that the account is closed is the consequence of the act of the drawer rendering his account to a cipher. Hence, reading Sections 138 to 140 together, it would be clear that dishonour of the cheque by a bank on the ground that the account is closed would be covered by the phrase "the amount of money standing to the credit of that account is insufficient to honour the cheque."
Learned counsel has submitted that in view of the above it does not make any difference whether the concerned account was already closed. Learned counsel has further contended that the judgment of Hon'ble Apex Court in the case of Jugesh Sehgal (supra) cited by the applicant is not applicable in the present case because in Jugesh Sehgal's case, the account from which the cheque was issued, pertained to some one else, whereas in the present case the cheques were issued from the account of a firm, of which the applicant was the sole proprietor and therefore she is liable to be prosecuted.
In reply to the argument advanced by the applicant that the husband of the applicant namely Rajat Mehra being the debtor, the loan was enforceable and recoverable only against him and not against the applicant, learned counsel for opposite party no. 2 has contended that this argument is totally misconceived in view of Section 118 of Negotiable Instruments Act which provides that until contrary is proved, it shall be presumed that a negotiable instrument was drawn for consideration. It is further contended that section 139 of the N.I. Act also draws a presumption in favour of holder of cheque by providing that :-
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
Learned counsel has submitted that thus in view of the aforesaid provisions of N.I. Act, there exists a strong presumption in favour of opposite party no. 2 and against the accused applicant. It is further contended that though the aforesaid presumption is rebuttable, but the same can only be discharged during the trial and not in the proceedings under Section 482 Cr.P.C. as laid down by Hon'ble Apex Court in the case of M/s. MMTC Ltd. And another Vs. M/s. MEDC HL Chemical and Pharma (P) Ltd. And another; 2002 (44) ACC 369.
Learned counsel for the complainant/opposite party no. 2 has further submitted that on a plain reading of the complaint, it is clearly evident that the complainant has no where stated in his complaint that the husband of the applicant had taken loan in his personal capacity. To the contrary, it is clearly mentioned that the husband of the accused applicant had taken loan from opposite party no. 2 for the purpose of running the aforesaid firm i.e. M/s. Radiant Services. Therefore, the money borrowed by the husband was in fact utilized by the applicant. It is further submitted that by issuing cheques in favour of opposite party no. 2, the applicant herself acquired the liability towards payment of cheques and now she cannot avoid her liability on the ground that for the loan taken by the husband, the wife is not responsible. Learned counsel has further submitted that in fact Mr. Rajat Mehra (husband of the applicant) for all practical purposes was doing the business of the firm M/s Radiant Services. It is lastly submitted that the signatures on the cheques were not forged and only in order to shield herself, the applicant is making a false statement, more so these are minute factual details, which cannot be looked into at this stage, hence the application should be dismissed with heavy cost.
Considered the rival submissions of the parties.
The applicant has no where stated as to how the cheques of Radiant Services, came into possession of opposite party no. 2. In view of the deeming provisions as envisaged in Sections 118, 138 and 139 of N.I. Act, the burden was on the applicant to show as to how those cheques came into possession of opposite party no. 2, when according to the applicant herself, at the time of closure of the firm, it was mandatory, as per Rules, to surrender all the unused cheques to the Bank before closing of the bank account. Whether the signature of the applicant on these cheques were forged or not or whether the husband of the applicant had taken loan from opposite party no. 2 for the purposes of running the aforesaid firm which for all practical purposes, was run by the husband of the applicant, or what were the terms and conditions between the parties at the time of taking the loan, are disputed questions of fact which cannot be adjudicated in the present proceedings under Section 482 Cr.P.C.
The Hon'ble Apex Court in a number of cases has laiddown the scope and ambit of court's powers under Section 482 Cr.P.C. in cases under Section 138 of N.I. Act.
In the case of Maruti Udyog Ltd. Vs. Narendra; (1999) 1 SCC 113, the Hon'ble Apex Court has held that :-
"by virtue of Section 139 of the Negotiable Instruments Act, the Court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the contrary is proved. This Court has held that at the initial stage of the proceedings the High Court was not justified in entertaining and accepting a plea that there was no debt or liability and thereby quashing the complaint. A similar view has been taken by this Court."
A similar view has been taken by Hon'ble Apex Court in the case of K.N. Beena Vs. Muniyappan and another; 2001 (43) ACC 1125 (SC), wherein again it has been held that :-
"under Section 139 of the Negotiable Instruments Act the Court has to presume, in a complaint under Section 138, that the cheque had been issued for a debt or liability."
In M/s. M.M.T.C. Ltd. and another Vs. M/s. Medchl Chemicals & Pharma (P) Ltd. And another; 2002 (44) ACC 369, the Hon'ble Apex Court has observed as under : -
"There is no requirement that the Complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on basis of averments in the Petitions filed by them the High Court could not have concluded that there was no existing debt or liability.
....Court is not justified in embarking upon an enquiry as to reliability or gnuineness of or otherwise of allegations made in complaint. Court cannot at this stage, say that there was no existing debt or liability, burden to prove it, was on respondents in the trial."
In view of the aforesaid discussion, this Court is of the considered view that the instant application has no force. Accordingly the prayer for quashing the impugned summoning order and the entire proceedings is refused.
However, keeping in view the fact that the applicant is an elderly lady,it is provided that in case the applicant has not yet obtained bail and she surrenders before the court below within 30 days from today and applies for bail, her bail application be considered and decided in view of the law laid down by Full Bench of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 affirmed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).
For a period of 30 days from today no coercive action shall be taken against the applicants.
With the aforesaid directions, this application is finally disposed off.
Dated : October 27, 2016.
S.B.