I have perused the judgment rendered in N. Rajangan's case (supra), which in turn has relied upon 'Sudha Beevi v. State of Kerala' MANU/KE/0104/2004 : 2004 (3) RCR (Criminal) 618. The judgment relied upon by counsel for the petitioner is not attracted in the facts of the present case as in those cases it was held that since the vehicle was repossessed by the financier, the post-dated-cheques, in the hands of the financier had become instruments for which consideration had failed. In the present case, the vehicle has not been repossessed by the financier but was stolen.
7. There is a presumption in favour of the holder of the cheque. Issuance of a cheque and later if cheque is not encashed, fastens the petitioner with criminal liability under the provisions of the Act. However, so far as justifiability of the insurance claim is concerned, it is a civil liability. Simply because the petitioner is entitled to payment of claim on civil side, he cannot be absolved of the penal consequences.
Equivalent Citation: 2013ALLMR(Cri)213
IN THE HIGH COURT OF PUNJAB AND HARYANA
Decided On: 11.05.2011
Appellants: Dheeraj
Vs.
Respondent: M/s. Mahindra and Mahindra Financial Services Ltd. and Anr.
Vs.
Respondent: M/s. Mahindra and Mahindra Financial Services Ltd. and Anr.
Hon'ble Judges/Coram:Kanwaljit Singh Ahluwalia , J.
1. Present petition has been filed under Section 482 Cr.P.C. praying that complaint No. 158 dated 04.07.2006 (Annexure P-5) and the summoning order dated 25.07.2006 (Annexure P-6) passed by the Chief Judicial Magistrate, Gurgaon whereby the petitioner was summoned to stand trial under Sections 138 of the Negotiable Instruments Act (hereinafter referred to as, 'the Act'), be quashed. Admittedly, the petitioner had obtained loan from the respondent No. 1-financier. He had also issued cheques towards payment of the installments. It is also not disputed that the petitioner had purchased a vehicle make Toyota Qualis bearing registration No. HR-38-LT-1730. This vehicle was insured with respondent No. 2 i.e. National Insurance Company Limited. The validity of the insurance cover was for one year commencing from 5th January, 2005 to 4th January, 2006.
2. The petitioner had issued following three cheques drawn on Oriental Bank of Commerce, Extension Counter, GB. Nagar, Noida:
3. All the cheques had bounced leading to filing of complaint (Annexure P-5) by complainant-respondent No. 1. Preliminary evidence was led by the complainant-respondent No. 1 on the basis whereof the petitioner was summoned to stand trial for an offence punishable under Section 138 of the Act by the Court of Judicial Magistrate (1st Class), Gurgaon.
4. It is projected in the present petition that the vehicle financed by respondent No. 1 and insured with respondent No. 2 was stolen on 21st November, 2005 and a report (Annexure P-7) to this effect was made to SHO, Police Station Sector 58, Noida. It is further pleaded in this petition that the petitioner had approached respondent No. 2 for release of the amount of insurance of the stolen vehicle, i.e. Toyota Qualis. Since the amount was not being released by the insurer respondent No. 2, the petitioner had approached the District Consumer Forum, GB. Nagar, Noida for release of the amount of insurance.
5. Mr. Rajesh Arora. Advocate appearing on behalf of the petitioner, has urged that there was a tripartite agreement executed between the petitioner, respondent No. 1-financier and respondent No. 2-National Insurance Company Limited, and therefore, till the amount of insurance is released petitioner cannot be prosecuted for an offence punishable under Section138 of the Act merely because the cheques issued by him had bounced. It is urged that the insurance amount is to be remitted to the financier, therefore, the financier cannot institute complaint (Annexure P-5) against the petitioner and hence the summoning order (Annexure P-6) is liable to be quashed. In support of the contention, reliance has been placed upon 'N. Rajangan v. M/s. Centurion Bank Ltd.' MANU/TN/3696/2009 : (2011) (1) RCR (Criminal) 5.
6. I have perused the judgment rendered in N. Rajangan's case (supra), which in turn has relied upon 'Sudha Beevi v. State of Kerala' MANU/KE/0104/2004 : 2004 (3) RCR (Criminal) 618. The judgment relied upon by counsel for the petitioner is not attracted in the facts of the present case as in those cases it was held that since the vehicle was repossessed by the financier, the post-dated-cheques, in the hands of the financier had become instruments for which consideration had failed. In the present case, the vehicle has not been repossessed by the financier but was stolen.
7. There is a presumption in favour of the holder of the cheque. Issuance of a cheque and later if cheque is not encashed, fastens the petitioner with criminal liability under the provisions of the Act. However, so far as justifiability of the insurance claim is concerned, it is a civil liability. Simply because the petitioner is entitled to payment of claim on civil side, he cannot be absolved of the penal consequences.
8. Counsel has further submitted that in the agreement, there is a clause that the dispute can be referred to an arbitrator. Any agreement cannot whittle down penal consequences which are created and flow from the Statute. Hence, there is no merit in the petition. The same is accordingly dismissed in limine.
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