In the High Court of Punjab and Haryana at Chandigarh
CRM-M-33763 of 2010
Date of Decision:23.7.2014
Sandeep Mehra alias Babl
V
Chander Parkash Madan
Coram: Hon’ble Mrs. Justice Rekha Mittal
Citation;2015 ALLMR(CRI)JOURNAL231
The petitioner has invoked Section 482 of the Code of
Criminal Procedure (in short “Cr.P.C.”) seeking quashing of complaint No.
278/2 dated 12.7.2010 titled “Chander Parkash Madan vs. Sandeep Mehra
@ Babl” pending in the court of Judicial Magistrate, Ludhiana (Annexure
P-2), order dated 12.7.2010 passed by the Judicial Magistrate, Ludhiana
(Annexure P-4) and proceedings emanating thereform.
The respondent filed the aforesaid complaint on averments that
in May 2010, the accused approached the complainant and asked him to
arrange friendly loan of Rs. 7,00,000/- with an assurance to return the
amount within one month but the complainant could arrange a sum of Rs.
6,00,000/- and lend it to the accused as a friendly loan. The accused issued
a post dated cheque bearing No. 048183 dated 1.6.2010 for a sum of Rs,
6,00,000/- drawn on Oriental Bank of Commerce, Chaura Bazar, Ludhiana
in favour of the complainant. The cheque on its presentation to the bank got
dishonoured vide memo dated 3.6.2010 with remarks “no such account”.
The accused failed to make payment of the cheque amount despite receipt of
legal notice.
Counsel for the petitioner contends that as the cheque in
question was dishonoured by the bank with remarks “no such account”, the
proceedings under Section 138 of the Negotiable Instruments Act, 1881 (in
short “the Act”) are not maintainable as under Section 138 of the Act,
criminal prosecution can be lodged when the cheque is returned by the
bank unpaid either because, (a) the amount of money standing to the credit
of the account is insufficient to honour the cheque; or (b) it exceeds the
amount arranged to be paid from that account by an agreement made with
the bank.
Another submission made by counsel is that the cheque in
question was not issued by the petitioner in discharge of any liability as he
never availed any loan from the respondent. The petitioner lost his bag
containing his account books and cheque book and in this regard, he lodged
Rapat No. 12 dated 29.7.2003 with Police Station, Kotwali, District
Ludhiana vide Annexure P-5. It is further submitted that in order to avoid
misuse of the cheque book, the petitioner closed his account in the year
2003. It is argued with vehemence that as the petitioner was not
maintaining an account in the bank from which the cheque in dispute is
allegedly drawn by him in June 2010, the essential ingredients of offence
under Section 138 of the Act become missing and resultantly, the criminal
proceedings cannot be allowed to continue.
Counsel for the respondent (complainant) contends that the
petitioner has raised disputed questions of fact which are not amenable to
adjudication in proceedings under Section 482 Cr.P.C. It is further
contended that in the DDR No. 12 dated 29.7.2003 (Annexure P-5), there is
no reference to loss of cheque book but it only refers to loss of account
books of last six years of M/s J.B.Factory. It is argued with vehemence that
if the petitioner despite knowing that he had already closed Account No.
11061 earlier being maintained by him with Oriental Bank of Commerce,
Chaura Bazar, Ludhiana had still issued the cheque dated 1.6.2010 in
favour of the respondent and the cheque has been dishonoured with the
remarks “no such account” meaning thereby that account stood closed, the
petitioner cannot escape his liability under Section 138 of the Act though he
may also be guilty of committing offence of cheating. In this regard,
reference has been made to the judgment of the Hon’ble Supreme Court of
India in NECP Micon Limited vs. Magma Leasing Limited 1999(2) r.c.r.
(Criminal) 648.
I have heard counsel for the parties and perused the case file.
The plea of the petitioner that he had lost his cheque book and
the cheque in question has been misused by the respondent is a disputed
question of fact requiring the parties to lead evidence for its adjudication,
therefore, it is not open for decision in proceedings under Section 482
Cr.P.C. However, I find force in the contention of counsel for the
respondent that DDR No. 12 dated 29.7.2003 relied upon by the petitioner,
does not make reference to loss of cheque book. Counsel for the petitioner
has not denied that the petitioner was earlier maintaining an account
bearing No. 11061 with Oriental Bank of Commerce, Chaura Bazar,
Ludhiana. The said account is statedly closed by the petitioner in the year
2003. The cheque in question was returned with remarks “no such
account”. In these circumstances, the remarks recorded by the bank are to
be read as that the account stood closed and therefore, the cheque could not
be honoured.
The question now arises that if the petitioner had issued a
cheque drawn on an account which was closed even prior to the issuance of
the cheque, can the petitioner seek quashing of criminal proceedings by
taking recourse to inherent jurisdiction of this Court under Section 482
Cr.P.C. In NECP Micon Limited’s case (supra), cited by counsel for the
respondent, the cheque was dishonoured on the ground that the account is
closed. However, in that case, the account was closed after issuance of the
cheque. The Hon’ble Supreme Court of India while dealing with the
conditions necessary to complete offence under Section 138 of the Act laid
down in the proviso (a), (b) and (c) of Section 138, answered the question
'whether cheque is returned by the bank unpaid on the ground that “account
is closed”, would it mean that cheque is returned as unpaid on the ground
that the amount of money standing to the credit of that account is
insufficient to honour the cheque?' in the following terms:-
“In our view, the answer would obviously be in the
affirmative because cheque is dishonoured as the amount
of money standing to the credit of that account was nil at
the relevant time apart from it being closed. Closure of
the account would be an eventuality after the entire
amount in the account is withdrawn. It means that there
was no amount in the credit of that account on the
relevant date when the cheque was presented for
honouring the same. The expression the amount of
money standing to the credit of that account is
insufficient to honour the cheque is a genus of which the
expression that account being closed is specie. After
issuing the cheque drawn on an account maintained, a
person, if he closes that account apart from the fact that
it may amount to another offence, it would certainly be
an offence under Section 138 as there was insufficient or
no fund to honour the cheque in that account; Further,
cheque is to be drawn by a person for payment of any
amount of money due to him on an account maintained
by him with a banker and only on that account cheque
should be drawn. This would be clear by reading the
Section along with provisos (a), (b) & (c ).”
When the facts and circumstances of the present case are
examined in the light of observations made in the aforesaid extract, I am of
the considered opinion that even if the petitioner has issued a cheque on an
account being maintained by him and the account was closed by him prior
to issuance of the cheque, the net effect is that there was no money in the
account on which the cheque was drawn and as a result, the cheque got
dishonoured for want of funds to honour the cheque in that account
attracting mischief of Section 138 of the Act. The petitioner in the
circumstances of the present case may also be guilty of committing another
offence for issuance of cheque from an account which already stood closed.
Keeping in view conduct of the petitioner, he otherwise does not entitle
himself to seek indulgence of this court in exercise of inherent jurisdiction
under Section 482 Cr.P.C.
For the aforesaid reasons, the petition is dismissed.
(REKHA MITTAL)
JUDGE
July 23, 2014
No comments:
Post a Comment