M/S S.P.A Eeit Udyog Tarun ... vs The State Of U.P And Ors.
2013 Latest Caselaw 1015 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 26
 

 
Case :- U/S 482/378/407 No. - 121 of 2013
 

 
Petitioner :- M/S S.P.A Eeit Udyog Tarun Faizabad Thru Prop (Complaintcase
 
Respondent :- The State Of U.P And Ors.
 
Petitioner Counsel :- Vinod Kumar Singh Ii,Balbir Singh
 
Respondent Counsel :- Govt. Advocate,Yogesh Singh
 

 
Hon'ble Ajai Lamba,J.

1.This petition has been filed under Section 482 of the Code of Criminal Procedure with the prayer that proceedings of complaint case No.4893 of 2012 (M/s Rama Viniyam Coal Private Limited, Faizabad through Director Umesh Kumar Jivaani Vs. S.P.A. Eeit Udyog, Tarun, Faizabad through Proprietor Pankaj Kumar Verma) be quashed. The petition also prays for quashing of order of summoning dated 15.9.2012 (Annexure-5) and order passed by the revisional court dated 11.12.2012 (Annexure-1).

2.The contention of learned counsel for the petitioner is that one leaf of cheque was lost by the clerk of the petitioner in regard to which payment was stopped vide an advise to the bank. The cheque was misused by respondent no.4/complainant. When the said negotiable instrument was presented, it was dishonored by the bank with an endorsement "payment stopped by the drawer". The endorsement has been placed on record by the respondents with his counter affidavit as Annexure-CA2. Cheque was again presented and was dishonored on 13.5.2012 with an endorsement "payment stopped by the drawer with F.I.R. application".

3.In the contention of learned counsel for the petitioner, when payment is stopped intentionally by the drawer of the cheque viz. the petitioner, no offence under Section 138 of the Negotiable Instruments Act can be said to have been committed. In this regard, reliance has been placed on judgment rendered by the Hon'ble Supreme Court of India in (2009) 2 Supreme Court Cases (Cri) 936, Raj Kumar Khurana Vs. State (NCT of Delhi) and another.

4.On the second count, it has been argued that the petitioner had no business transaction with respondent no.4. This would make it apparent that lost cheque for Rs.17,00,000/- (rupees seventeen lacs) has been mis-utilized.

5.Learned counsel appearing for the respondent-complainant has relied on (2010) 11 Supreme Court Cases 441, Rangappa Vs. Sri Mohan, to argue that when a negotiable instrument is issued, presumption exists that there is legally enforceable debt or liability, although the presumption is rebuttable in nature.

6.On the strength of judgment rendered in Rangappa's Case (supra), it has been argued that even in the cases where payment has been stopped by drawer of the cheque, Section 138 of the Negotiable Instruments Act can be invoked.

7.Learned counsel appearing for the respondent-complainant has relied on Annexure-CA3 appended with the counter affidavit, which indicates prima facie that the respondent-complainant had supplied coal to the petitioner at various points in time. It was legally enforceable liability. So as to satisfy the dues, the petitioner had issued the cheque. The petitioner, however, developed greed and with pre-determined mind stopped payment and also lodged an F.I.R. in that regard so as to create a defence.

8.No other arguments has been addressed either by learned counsel for the petitioner, or by learned counsel for the respondents.

9.I have considered the rival contentions.

10.The cheque was issued from the bank account of the petitioner. The said fact has not been denied. Plea has been taken that the cheque was lost and, therefore, payment was stopped by the drawer. In such circumstances, it would be an abuse of process of the court and process of the law to allow this proceedings to go on. For the said purpose, learned counsel has relied on the judgment rendered by the Hon'ble Supreme Court of India (Two Judges' Bench) in Raj Kumar Khurana' case (supra).

11.So far as the factum of loss of cheque is concerned, it would be a disputed question of fact. There is possibility that such a defence has been created by making a complaint to the police and stopping payment on the negotiable instrument through advice to bank. There is a possibility that so as to escape liability of criminal case, the defence has been created.

12.A reference to Annexure CA-3 (collectively), noted above, would prima facie indicate that there were some business transactions between the parties. In such circumstances, bare contention of the petitioner on affidavit that there was no business transaction with respondent no.4, cannot be accepted. It would be a matter of evidence and would be decided by the trial court. While taking affidavit and counter affidavit, it cannot be said, in peculiar facts and circumstances of the case, that there was no enforceable liability or debt to be discharged by the petitioner.

13.The contention of learned counsel for the petitioner to the effect that if coal had been supplied by the respondent and payment had not been made, it would be merely a civil liability, cannot be accepted.

14.Chapter XVII has been introduced in the Negotiable Instruments Act, 1881 for the cases in which a negotiable instrument is dishonored. In such circumstances, the said contention is required to be rejected.

15.Judgment rendered by the Hon'ble Supreme Court of India in Rangappa's case (supra) is by a larger Bench and states in para 18 as under:

18. Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act. With respect to the facts of the present case, it must be clarified that contrary to the trial court's finding, Section 138 of the Act can indeed be attracted when a cheque is dishonoured on account of "stop payment" instructions sent by the accused to his bank in respect of a post-dated cheque, irrespective of insufficiency of funds in the account. This position was clarified by this Court in Goaplast (P.) Ltd. v. Chico Ursula D'Souza, wherein it was held: (SCC pp. 232g-233c)

"Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. The said provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation which serves the object of the statute. A post-dated cheque will lose its credibility and acceptability if its payment can be stopped routinely. The purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque.

In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong."

16.In view of the law, as noticed above, the petitioner cannot take any benefit of judgment of the Hon'ble Supreme Court of India (Two Judges' Bench), rendered in Raj Kumar Khurana's case (supra). It follows that complaint under Section 138 of the Negotiable Instruments Act can be filed, even in cases where payment of cheque has been stopped by drawer of the cheque, as has been held in Rangappa's case (supra).

17.In view of the above, no ground has been shown to the Court to show indulgence while exercising jurisdiction under Section 482 of the Code of Criminal Procedure.

18.The petition is, accordingly, dismissed.

19.The parties are directed to appear before the trial magistrate on 29.4.2013.

Order Date :- 17.4.2013

GK Sinha