To sum up, the facts which are emerging from the record of the complaint case are as following:-
(i) complaint for two cheques was time barred;
(ii) When rejection order was challenged before the revisional court, opportunity of hearing was not afforded to the petitioners/accused;
(iii) Cheques were not issued by the petitioner- Sandee Shrivastava, therefore, he is not liable for the offence under Section 138 of the NI Act;
(iv) Cheques were issued by another petitioner- accused Kuldeep Shrivastava but he had not drawn the cheques on an account maintained by him, as indicated in the opening words of Section 138 of the NI Act.
On these premises, the arguments advanced by the learned counsel for the respondent are neither tenable nor acceptable. For the aforesaid reasons, the petitions are allowed. The entire proceedings against both the petitioners are hereby quashed.
Madhya Pradesh High Court
Kuldeep Shrivastava vs Ramesh Chandra on 7 August, 2014
Misc. Cri.C.Nos.6617 & 6686/08
Citation; 2015 CRLJ(NOC)474 MP
As the grievance raised in the aforesaid two petitions is identical and same, heard together and disposed of by this common order.
(2) Both the aforesaid petitions have been preferred by the petitioners/accused under Section 482 of Cr.P.C.
having been aggrieved by an order dated 26/3/2008 passed in Criminal Case No.4233/06 by the Chief Judicial Magistrate, Morena as well as the order dated 3/7/2001 passed by the Sessions Judge, Morena in Criminal Revision No.98/01 while rejecting the order passed by C.J.M., Morena and remanding the matter back to the Magisterial court with a direction to register a case on private compliant of the respondent/complainant for offence under section 138 of the Negotiable Instruments Act (for short "NI Act") (3) For facility of reference, facts are being taken from Criminal Case No.4233/2006 (Ramesh Chand Vs. Sandeep Shrivastava), registered on private complaint.
(4) As per the case of the complainant, on 1/6/2000 Sandeep Shrivasvata (petitioner of Misc. Cri.C.No.6686/2008), who is brother of Kuldeep Shrivastava, took a four wheeler vehicle of Tata having registration No. 407 MP06/E0798 on hire from the complainant for a period of six months till 1/12/2000 on monthly rent basis payment of Rs. 9,000/-. The deed to that effect was duly executed before the witnesses. It is alleged that against payment of the hire rent, the petitioner Kuldeep Shrivasvata had drawn four cheques for his brother Sandeep Shrivastava's Account in favour of the respondent/complainant, bearing No. (i) 064974, dated 3/6/2000 for a sum of Rs.9,000/-, No. (ii) 064971, dated 5/7/2000 for a sum of Rs. 9,000/-, No. (iii) 064972 dated 5/8/2000 for a sum of Rs. 9,000/- and No. (iv) 064973 dated 5/9/2000 for a sum of Rs. 9,000/-. When the complainant presented two cheques No. (i) 064974, dated 3/6/2000 for a sum of Rs. 9,000/- and No. (ii) 064971, dated 5/7/2000 on 26/7/2000 for encashment at the District Co-operative Central Bank, Morena, same came to be dishonoured on 26/7/2000 for want of sufficient funds in the account of holder of the cheques. Same has been informed by the Bank on 30/7/2000. The complainant duly informed by notice in writing No.13986, dated 16/8/2000, about dishonour of aforesaid two cheques to both the petitioners and to deposit the payment in the account within seven days from the receipt of the notice, but no such amount was deposited by the petitioners.
(5) Thereafter, on 12/9/2000, the respondent further presented remaining two cheques No. (iii) 064972 dated 5/8/2000 for a sum of Rs. 9,000/- and No. (iv) 064973 dated 5/9/2000 for a sum of Rs. 9,000/-, which too were dishonoured on account of insufficient fund. The complainant then issued registered notice to the petitioners through counsel Shri N.L. Jatav on 19/9/2000 demanding payment within fifteen days from the receipt of the notice. Since the petitioners despite of receiving such notice, failed to make the payment, the complaint was filed on 30/10/2000 against the petitioners/accused for committing offence punishable under section 138of the Act as well as sections 420, 468 of I.P.C., which was dismissed as time barred on 30/3/2001 by the learned C.J.M.
(6) Against said rejection order dated 30/3/2001, the complainant preferred Cri. Rev.No.98/2001 before the Sessions Judge, Morena (M.P.). The learned Sessions Judge as per order dated 3rd July, 2001 while setting aside the order dated 30/3/2001 and treating the complaint within time, directed the trial Magistrate to register a case against the petitioners/accused and proceed with the matter in accordance with law. In compliance of the order dated 3rd July, 2001 passed by the revisional court, the learned Magistrate vide order dated 12/7/2001, took a cognizance against the petitioners only for offence under Section 138 of the Act having found no case made out against the accused for other offences under sections 420, 467, 468, of I.P.C. On 5/11/2007, the accused were arrested and bailed out on furnishing bonds by the trial court. Thereafter, they filed an application for dismissal of the complaint as barred by time, which was rejected vide order dated 26/3/2008 and the case was fixed for evidence of the complainant. Having being aggrieved by the orders aforesaid, the present petitions have been preferred.
(7) Learned counsel for the petitioners contended that both the orders passed by the courts-below are against the facts on record and are liable to be set aside. It is submitted that the cause of action accrued to the respondent from the date of notice given on 16/8/2000 but in this case the complaint was filed on 30/10/2000, beyond prescribed period of limitation. Hence, dismissal of the complaint at first instance by the trial Magistrate was proper but in revision filed by the respondent said fact was overlooked and the rejection order of complaint was set aside on wholly untenable grounds.
(8) It is submitted that at very first time on 5/11/07 when petitioners reached to the trial court they came to know about the impugned actions. Admittedly, no criminal revision against the impugned orders were filed and the petitioners have directly rushed to this court for invoking inherent powers under Section 482 of Cr.P.C for which there is no bar of limitation created under theLimitation Act and so the petitions preferred under Section 482 of Cr.P.C. are maintainable in view of the law laid down by the Hon. Apex Court in the case of Dhariwal Tomacco Product Limited & others Vs. State of Maharashtra & another (2009) 2 SCC 370.
(9) In the next submission, learned counsel for the petitioners pointed out that the revisional court passed an order on 3/7/2001 behind the back of the petitioner and no notice was issued to them and therefore without affording any opportunity of hearing to the petitioners, the order passed by the revisional court in this manner is bad in law and the same is also liable to be set aside. To support his argument, learned counsel for the petitioners placed reliance on the decision of the Apex Court in the case of P. Sundarrajan & others Vs. R. Vidhya Sekar (2006)1 SCC (Cri) 345.
(10) On the other hand, it is submitted by the learned counsel appearing for the respondent that the cheques were issued by the petitioners against the payment of hire rent and the complaint under the NI Act is in respect of such liabilities towards which cheques were issued in favour of the respondent/complainant and subsequently came to be dishonoured. It is submitted that the respondent/complainant issued a registered notice, as required in proviso (b) to Section 138 of the Act to the accused, which despite of receiving by them on 23/9/2000, no payment was made and in such circumstances, the complaint was filed on 30/10/2000 against the petitioners/accused for having committed an offence under section 138 of the NI Act which is well within time. It is also submitted that against the impugned orders, revision should have been preferred but bypassing that forum, powers under section 482 of Cr.P.C. could not be invoked. As such, according to the learned counsel, the petitions being not maintainable are liable to be dismissed.
(11) Having regard to the arguments advanced by the learned counsel for the parties, entire record of the case and the relevant law have been perused.
(12) Before adverting to the rival submissions, it would be useful to reproduce relevant provisions of the NI Act which are extracted herein below:-
"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 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 (later on w.e.f. 6/2/2003 substituted by 30 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."
(13) The manner of taking of cognizance of offence under Section 138 of the NI Act is provided for under Section 142 of the said Act. It reads as under:
"142. Cognizance of offences.--
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."
A close reading of the aforesaid provisions make it clear that the cause of action for presentation of a complaint for the offence under Section 138 can be said to have arisen on expiry of 15 days from the date of receipt of the notice issued by the complainant. A combined reading of Clause (b) of Section 142 and Clause (c) of Section 138 of the NI Act discloses that the time stipulated for submission of the complaint is one month and fifteen days from the date of receipt of notice by the accused/respondent.
(14) Let us proceed now to examine the factual position of the case in the light of the legal provisions of law, as mentioned above.
(15) Admittedly, as mentioned in para 2 of the complaint, alleged cheques were issued by the petitioner- accused Kuldeep Shrivastava and were not issued by another petitioner-accused Sandeep Shrivastava. This fact also got strengthened and was proved from the statement of witness Rambihari Bandil (PW-2) recorded under Section 202 of Cr.P.C. on 16/11/2000. InSection 138 of the NI Act the legislation has clearly stated that for the dishonoured cheque, the drawer shall be liable for conviction. This was also held in the case of Suman Sethi Vs. Ajay K. churiwal (AIR 2000 SC 828). It is nowhere in dispute, that the cheques in this case were not issued by petitioner-accused Sandeep Shrivastava obviously therefore he was not the drawer of the disputed cheques. Apart that, cheque No. (i) 064974, dated 3/6/2000 for a sum of Rs.9,000/- and cheque No.
(ii) 064971, dated 5/7/2000 for a sum of Rs. 9,000/- were dishonoured by the bank and information was given to the complainant on 30/7/2000, meaning thereby in view of section 138(b) of the NI Act, notice should have been issued within fifteen days since the date of information, i.e. 30/7/2000 but in this case notice was issued on 16/8/2000 by written letter Entry No.13986, dated 16/8/2000, as mentioned in para 5 of the complaint itself and therefore notice was delayed by two days. When this notice was received by the petitioners ? neither it was mentioned in the complaint nor it was stated by the complainant Ramesh Chandra (PW-1) at the time of recording of his statement under Section 200 of Cr.P.C.
(16) As per provisions contemplated in Section 142(b), the complaint should be made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138 of the NI Act, meaning to say when notice dated 16/8/2000 was issued and even then payment was not made after receiving the notice within fifteen days, then after a period of fifteen days, the complainant was supposed to file complaint within one month. The fact of receiving notice dated 16/8/2000 was not proved by the complainant by adducing any documentary or oral evidence on record. Therefore, the complaint submitted by the respondent on 30/10/2000 on the basis of further notice given on 19/9/2000, received on 23/9/2000 for aforesaid two cheques No. (i) 064974, dated 3/6/2000 for a sum of Rs.9,000/- and No. (ii) 064971, dated 5/7/2000 for a sum of Rs. 9,000/- was beyond period of limitation, and therefore, could not have been entertained by the revisional court but unfortunately, the revisional court wrongly held that the complaint filed for these two cheques also was well within time.
(17) So far as other two cheques bearing No. (iii) 064972 dated 5/8/2000 for a sum of Rs. 9,000/- and No.
(iv) 064973 dated 5/9/2000 for a sum of Rs. 9,000/- are concerned, it is submitted by the petitioners' counsel that for these two cheques, the complaint has been filed well in time. Hence, no discussion would be required in this matter as far as question of these two cheques is concerned.
(18) On further going to discuss the matter with regard to the cheques in question, Babulal (PW-3), who was an Accountant of the concerning bank at the relevant time, in his statement recorded under Section 202 of Cr.P.C. has stated that the disputed cheques could not be encashed because in the bank account of petitioner- Sandeep Shrivastava, no amount was found. Again here when we will look upon the language of opening words employed in Section 138 of the NI Act it is clear that the person liable to answer this penal provision is only the person, who had drawn the cheque, which could be seen from the opening words "where any cheque drawn by a person on an account maintained by him....." thereby indicating, the person liable to be dealt with under Section 138 of the NI Act or the person answerable under Section 138 of the NI Act must be the person, who had drawn the cheque on an account maintained by him. In this case, as seen from the materials available on record, the cheques were drawn by petitioner-Kuldeep Shrivastava for the account of another petitioner-
Sandeep Shrivastava. There is no evidence placed by the complainant in the shape of oral or documentary that the petitioner-Kuldeep Shrivastava was authorized to sign on behalf of Sandeep Shrivastava, who was real account holder. Therefore, petitioner-Kuldeep Shrivastava certainly will not come within the meaning of a person "cheque drawn by a person on an account maintained by him". This being the position, the complaint filed against petitioner-Kuldeep Shrivastava, who had drawn the cheques for the other account holder, is not tenable and deserves to be dismissed for the offence punishable under Section 138 of the NI Act. Similarly, petitioner- Sandeep Shrivastava can also not be held liable for these cheques because these cheques were not drawn by him. Virtually, Kuldeep Shrivastava had issued the cheques for the account which was maintained by Sandeep Shrivastava and therefore for these four cheques complaint against petitioner-Sandeep Shrivastava was not also maintainable. Similar question was decided by this court in Criminal Appeal No.319/2006 (Alok Vs. Praveen Kumar), on 28/3/2014.
(19) Now the question left before this court for consideration is whether this petition filed underSection 482 of Cr.P.C. is maintainable or not especially when other forum of filing criminal revision was available to the petitioners.
(20) The Legislature in its wisdom, while emphasising the need of providing inherent powers to the High Court, introduced Section 482 of the Criminal Procedure Code which reads as under:
"482. Saving of inherent powers of High court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the. High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. "
(21) A bare reading of the above provision indicates that the Legislature intentionally worded this provision widely and, thus, necessarily in order to prevent abuse of the process of any court or otherwise to secure ends of justice, appropriate order can be issued by this court under inherent powers vested under section 482 of Cr.P.C., therefore petitions are maintainable for seeking such kind of reliefs. Only on the ground of non-availing of remedy provided for filing criminal revision would not create obstruction in the way of filing such petitions under Section 482 of Cr.P.C. A reference may be made on this point to a decision of Hon. Apex court in the case of Dhariwal Tomacco Product Limited & others (supra). Therefore, the contention of the learned counsel for the respondent about maintainability of the petitions is not acceptable.
(22) Admittedly, opportunity of hearing was not afforded by the revisional court to the petitioners when rejection order of private complaint was challenged in revision. This revision was allowed without giving any opportunity of hearing by directing the complaint to be registered for the alleged offence against the petitioners. Such kind of orders cannot be allowed to stand which has been passed in violation of the principal of natural justice as laid down in the case of P. Sundarrajan & others (supra).
(23) To sum up, the facts which are emerging from the record of the complaint case are as following:-
(i) complaint for two cheques was time barred;
(ii) When rejection order was challenged before the revisional court, opportunity of hearing was not afforded to the petitioners/accused;
(iii) Cheques were not issued by the petitioner- Sandee Shrivastava, therefore, he is not liable for the offence under Section 138 of the NI Act;
(iv) Cheques were issued by another petitioner- accused Kuldeep Shrivastava but he had not drawn the cheques on an account maintained by him, as indicated in the opening words of Section 138 of the NI Act.
(24) On these premises, the arguments advanced by the learned counsel for the respondent are neither tenable nor acceptable.
(25) For the aforesaid reasons, the petitions are allowed. The entire proceedings against both the petitioners are hereby quashed. Petitioner are discharged of the offence under Section 138 of the NI Act.
(26) Copy of this order be dispatched alongwith the record to the trial court for necessary compliance.
No order as to costs.
(B.D.Rathi) Judge (Bu)
No comments:
Post a Comment