The expression "holder in due course" is clear and unambiguous. The words are plain and meaning clear. A holder in due course is a person who is possessor of an instrument even then it is payable to bearer. He must be in possession on it. If the bill is payable to holder then he has to be a payee or indorsee of the same.
In the present case in hand perusal of the cheque indicates that it was addressed as payable to "self and that the word bearer has not been deleted. It is not even scored off. There were certain transactions alleged and the money was claimed to be due. The respondent was in possession of the same and presented it before the bank, but it was dishonoured. He was obviously holder in due course. When other conditions were satisfied, there was no question of holding that merely because the cheque was addressed to self. Section 138 in the facts would not be attracted. Once the cheque had been given for valid consideration, the respondent must be taken to be holder in due course.
Andhra High Court
Intech Net Limited And Ors. vs State And Anr. on 12 July, 2006
Equivalent citations: IV (2007) BC 468, 2007 CriLJ 216
1. Cri. P. No. 2591 of 2004 is filed to quash the proceedings in C. C. No. 1059 of 2004 pending on the file of XVII Metropolitan Magistrate, Hyderabad. Whereas, Cri. P. No. 4523 of 2004 is filed to quash the proceedings in C. C. No. 843 of 2004 pending on the file of V Metropolitan Magistrate, Hyderabad. In both the C. Cs. proceedings were initiated against the petitioners for the offence punishable under Section 138 of Negotiable Instruments Act.2. Since the parties in both the petitions are same and as the issue involved in both the petitions is common, they are heard together and are being disposed of by this common order.
3. In these two petitions, a short question, but important, that arises for consideration is whether a self-cheque, if dishonoured, will attract the offence under Section 138 of the Negotiable Instruments Act (for short 'the Act').
4. The petitioners are accused 1 to 4 and the second respondent is the de facto complainant in both the petitions. A.1 is M/s. Intech Net Limited and A.2 to A.4 are its Directors. In the complaint, the second respondent alleged that the petitioners approached him, expressed their personal difficulties and sought for financial assistance to a tune of Rs. 5,00,000/- with a promise that A.-2 to A.4 are responsible for the loan and that the loan would be repaid within a short period. Thereafter, on the demand made by the complainant, the accused have issued two cheques bearing Nos. 006870 and 006871 dated 27-8-2003 and 28-8-2003 for Rs. 2,50,000/- each drawn on Globat Trust Bank Limited, Jubilee Hills Branch, Hyderabad towards repayment of the amount taken by them. When the complainant presented the said cheques with the accused banker for encashment, the same were returned by the banker informing that there were no sufficient funds in the account with a further information that as they are self-cheques, they would be returned across the counter and no written endorsement would be given regarding insufficiency of funds. Hence, the complainant issued statutory notice on 20-2-2004 and the same was received by the accused on 21-2-2004. As the accused did not make the payment covered under the bounced cheques within the stipulated time, the complainant initiated the proceedings under the Act. Cheque No. 006871, dated 28-8-2003 is the subject matter of C. C. No. 1059 of 2004 on the file of XVII Metropolitan Magistrate and Cheque No. 006870 is the subject matter in C. C. No. 843 of 2004 on the file of V Metropolitan Magistrate, Hyderabad.
5. It is contended by the learned Counsel for the petitioners-accused that since the cheques are self-cheques, there is no evidence about their presentation to the bank. It is contended that to attract the provisions of Section 138 of the Act, (1) it has to be shown that the cheque should be drawn on another person; (2) it has also to be shown that it was issued towards discharge of legally enforceable debt; and (3) there should be an endorsement of the banker for return of the cheque for insufficient funds. Since none of the three ingredients are fulfilled, the learned Magistrate ought not to have taken cognizance of the offence and issued the process and therefore, the impugned proceedings are liable to be quashed. He further, submits that since the cheques are self-cheques, there is no liability on the part of the petitioners. It is also contended that under Section 32 of the Act, the liability of the drawee arises only when he accepts the bill. In support of his submission, the learned Counsel for the petitioners placed reliance upon a judgment of the Apex Court in Jagjivan Mavji Vithiani v. Ranchhoddas Meghji . Further, he placed reliance on Mahesh Goyal v. S.K. Sharma 1997 Cri LJ 2868 (P & H). It is contended that cheque is a bill of exchange as defined under Section 6 of the Act and unless the bank slip or memo having thereon the official mark denoting that the cheque has been dishonoured, no presumption can be drawn for the offence under the Act in view of provisions of Section 146 of the Act. Presumption under Section 139 cannot be available to the complainant since he is not a holder of the cheque received the cheque, but in fact, holder of the cheque is the accused themselves. Therefore, the impugned proceedings are liable to be quashed.
6. Per contra, the learned Counsel for the second
respondent-complainant contends that once the accused admitted the issuance of cheques, the person to whom the cheques are handed over, is the holder of the cheque in due course as per Sections 9 of the Act and the provisions of Section 143 to 147 are come into force with effect from 16-2-2003. Therefore, it is not required that the bank should issue a slip or memo having thereon the official work denoting that the cheque has been dishonoured. He placed reliance on Michael Kuruvilla v. Joseph J. Kondody 1998 (2) ALD (Cri) 957 (Ker) and Prabhakaran v. Natesan 1998 (4) Crimes 554 (Mad).
7. It is convenient to consider the rival submissions made on behalf of the parties in the context of statutory provisions under the Negotiable Instruments Act. Section 6 defines 'cheque', which reads thus:
6 "Cheque" :- A "Cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.
Explanation 1:....
"Holder" is defined under Section 8, which reads:
8. "Holder" :-The "Holder" of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto....
"Holder in due course" is defined under Section 9, which reads:
9 "Holder in due course" :- "Holder in due course" means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if [payable to order], before the amount mentioned in it became payable, and without having sufficient cause to believe that any defeat existed in the title of the person from whom he derived his title.
Section 138 reads as under:
Section 138.- Dishonour of cheque for insufficiency etc., of funds in the account.-
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 honour 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 provision of this Act, be punished with imprisonment for a term which may extend to two years, 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 thirty 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.
Explanation.- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability.
Section 139 deals with presumption in favour of holder, which reads:
Section 139. - Presumption in favour of holder.- 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.
Section 146 reads:
146. Bank's slip prima facie evidence of certain facts :- The Court shall, in respect of every proceedings under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
8. In Jagjivan Mavji Vithiani's case AIR 1954 SC 554 (1 supra) the appellant therein instituted a suit on a Hundi for Rs. 10.000/- dated 4- 12-1997, drawn in his favour by Haji Jethabhai Gokul and Co., of Basra on the respondents, who were merchants and commission agents in Bombay. The said hundi was sent by registered post to the appellant in Bombay, and was actually received by one Parikh Vrajlal Narandas, who presented it to the respondents on 10-12-1947, and received payment therefor. On such payment, the appellant instituted the suit alleging that the payment to Vrajlal was not binding on him, and that "the defendant-drawee" remained liable on the hundi. The defendants apart from relying on the authority of Vrajlal to grant discharge, also pleaded that the plaint did not disclose a cause of action against them, as there was no averment therein that the hundi had been accepted by them. The City Civil Judge accepting the evidence of appellant, held that Vrajlal had not been authorized to receive the amount of the Hundi and further held that the plea of discharge put forward by the respondents implied that the hundi had been accepted by them and accordingly decreed the suit. On appeal, the High Court of Bombay held that the appellant would have a right of action on the hundi against the respondents only if it had been accepted by them and that as the plaint did not allege that it had been accepted by them, there was no cause of action against them and accordingly allowed the appeal and dismissed the suit. On further appeal, the Apex Court after considering the ingredients of Section 32 of the Act, held that under this Section, the liability of the drawee arises only when he accepts the bill; there is no provision in the Act that the drawee is as such liable on the instrument, the only exception being under Section 31 in the case of a drawee of a cheque having sufficient funds of the customer in his hands; and even then, the liability is only towards the drawer and not the payee. Therefore, the facts of that case are not applicable to the facts of the case on hand.
9. In Mahesh Goyal's case 1997 Cri LJ 2868 (P & H) (2 supra), at paras 8 and 9 it was held as under:
8. The expression "holder in due course" is clear and unambiguous. The words are plain and meaning clear. A holder in due course is a person who is possessor of an instrument even then it is payable to bearer. He must be in possession on it. If the bill is payable to holder then he has to be a payee or indorsee of the same.
9. In the present case in hand perusal of the cheque indicates that it was addressed as payable to "self and that the word bearer has not been deleted. It is not even scored off. There were certain transactions alleged and the money was claimed to be due. The respondent was in possession of the same and presented it before the bank, but it was dishonoured. He was obviously holder in due course. When other conditions were satisfied, there was no question of holding that merely because the cheque was addressed to self. Section 138 in the facts would not be attracted. Once the cheque had been given for valid consideration, the respondent must be taken to be holder in due course.
(Emphasis supplied)
10. In Michael Kuruvilla's case 1998 (2) Andh LD (Cri) 957 (Ker) (3 supra) a learned single Judge of Kerala High Court after following the Judgment of the said Court in A. K. Hameed v. Appakutty and after considering the definition of 'Holder in due course' under Section 9 of the Act held that though the cheque does not contain the name of the payee and the printed words "or bearer" are struck off and also it is written pay to cash, is a legal and valid negotiable instrument. It has to be implied that the direction is to pay to the bearer and there is nothing on record to show that the appellant cannot be treated as holder in due course as contemplated under Section 9 of the Act. Having observed so, the learned Judge set aside the judgment of the trial Court in finding the accused not guilty of the offence under Section 138 of the Act and held that the accused was guilty of the offence and accordingly convicted him for the said offence.
11. In Prabhakaran's case 1998 (4) Crimes 554 (Mad) (4 supra) a learned single Judge of the Madras High Court held that once the complainant becomes the bearer and he presented the cheque for encashment, virtually the complainant becomes the holder in due course and as such, it could very well be said that he is competent to file a complaint on the non-payment of the cheque amount after dishonour of the cheque.
12. Coming to the facts of the case on hand, the petitioners have admitted the issuance of the cheques in question, but pleaded that it was not issued towards the loan transaction as alleged in the plaint but was issued towards advance payment for supply of goods. It was pleaded that there was a transaction between the corporates i.e. the first petitioner and the complainant for supply of goods through invoice. However, the first petitioner made an advance payment of Rs. 5,00,000/- by way of demand draft, but the goods were not delivered and taking advantage of the self-cheques given in the process of the said transaction, the complainant fraudulently tried to have an unjust enrichment and thus utilized the self-cheques. Once the issuance of the cheques is admitted and as the words "or bearer" have not been struck off, the complainant is held to be the holder of the said cheques in due course though it was written as self and thus he is entitled to receive the cash and on dishonouring of the said cheques, he can very well file the complaint. The contention of the petitioners that the said cheques was issued in the process of transaction between the first petitioner and the complainant for supply of goods has to be substantiated during the course of trial by the petitioners by leading evidence. Under these circumstances, I see no ground to quash the impugned proceedings at this stage.
13. The Criminal Petitions are accordingly dismissed.
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