HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 04.10.2017 Delivered on 30.10.2017 Court No. - 13 Case :- MATTERS UNDER ARTICLE 227 No. - 5235 of 2017 Petitioner :- Indra Anand Shukla @ Goldee Shukla Respondent :- State Of U.P. & Another Counsel for Petitioner :- Rajesh Kumar Singh Counsel for Respondent :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
This Civil Misc. Writ Petition has been filed with the prayer that the proceedings of Complaint Case No.586/IX/2014 (Jai Kumar Nigam Vs. Indra Anand Shukla @ Goldee Shukla), under Section 138 of N.I. Act, 1881, pending in the Court of Special Judicial Magistrate, Banda be set aside and consequently the summoning order dated 26.03.2015 directing the accused-petitioner to face trial be also set aside.
Sri Rajesh Kumar Singh, learned counsel for the accused-petitioner states that an overwriting has been made on the date of the cheque to bring it within the time limit by overwriting '4' in place of '3' in the cheque allegedly issued by him in favour of opposite party no.2 because initially the said cheque bore the date 01.07.2013 and it has been made to appear to have been issued on 01.07.2014 by the said overwriting. Had the cheque been taken to have been issued on 01.07.2013 the same would be time barred as the time for presentation for a cheque before the bank is only 90 days. Further it is argued that the said wrong has been committed in collusion with the Officers of the SBI. Normally if a cheque bears overwriting, the same is not received by the Bank Authorities but in this case the said cheque which had clear overwriting, was taken and it was reported that the accused-petitioner did not have money in his account on the date when the said cheque was issued and, hence it bounced/was dishonoured.
The record has been perused.
Opposite party no.2 has moved a complaint on 15.09.2014 before the court below stating that the accused-petitioner had received Rs.1,30,000/- (one lac thirty thousands) in cash from him which was returned by him through cheque no.529139 on 01.07.2014 drawn on the SBI Branch against Khata No.30826742180. The said cheque was presented by him before the SBI for being encashed but it was reported that due to insufficient amount in the account of accused-petitioner, it could not be encashed. Thereafter opposite party no.2 gave an information regarding this fact to the accused-petitioner on 11.08.2014 and also sent a notice informing him about this fact through registered post on 23.08.2014. Even then when the payment was not made the complaint was filed by opposite party no.2 on 15.09.2014. The record further reveals that the complainant had got himself examined under Section 200 Cr.P.C. in which he supported the version given in the complaint and after its consideration the court below summoned the accused-petitioner (Indra Anand Shukla @ Goldee Shukla) to face trial under Section 138 N.I. Act, vide order dated 26.03.2015 (impugned order).
The argument made by the learned counsel for the accused-petitioner that the cheque dated 01.07.2013 was tampered with by overwriting on number '4' to make it, to have been issued on 01.07.2014 only to bring it within the time limit, was in the knowledge of the Bank Authorities because the Bank Officers/Officials do not entertain any cheque having overwriting, does not appeal to this Court because if Bank Authorities had any doubt about the cheque they could have returned the same to the presenter. Therefore, when the bank did not have any objection, it cannot be said that opposite party no.2 had anything to do with the cheque being defective. Moreover, this is a matter of fact and if there is an overwriting which would make a cheque inadmissible, being time barred, the said fact can be contested only before the Court of Law. The accused-petitioner has opportunity to cross-examine opposite party no.2 before the court below on this point and if he succeeds in establishing that the said overwriting makes the said cheque inadmissible, he may get appropriate relief. At this stage there is no cogent evidence/ground to disbelieve the statement of complainant (opposite party no.2) given on oath before the Court in support of his complaint.
Learned counsel for the accused-petitioner has also simultaneously prayed that a direction may be issued for approaching the court below for compounding the case under the guidelines issued by the Supreme Court in Damodar S. Prabhu Vs. Sayed Baba Lal H., 2010 (5) SCC 663 in paragraph 21, which reads as follows:
"21. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:
(i) In the circumstances, it is proposed as follows:
(a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.
(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the court deems fit.
(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.
(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount."
In view of the above guidelines it is deemed proper that the accused-petitioner may approach the court below to seek compounding of the case as per the guidelines mentioned above.
It is directed that if the accused-petitioner approaches the court below within 30 days from the date of order, his application for compounding may be decided after giving opportunity of hearing to both the parties as per law.
This petition is, accordingly, disposed of.
Order Date :- 30.10.2017 Shahroz