Allahabad High Court
Shanish Kumar Misra vs State Of U.P.& 2 Ors. on 30 October, 2014
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Judgment reserved on: 08.10.2014
Judgment delivered on: 30.10.2014
Court No. - 21
Criminal Misc. Application (U/s 482) No. 2490 of 2005
Shanish Kumar Misra S/o Sri S. K. Misra
R/o A-360, Dayal Regidency, Faizabad Road
P.S. Chinahat, District-Lucknow
Office Address- 3/96 1st Floor, Vivek Plaza,
Opposite Corporation Bank, Vivek Khand, Gomtinagar
District-Lucknow ..............Petitioner
Versus
1. State of U.P.
2. Bhanu Yadav S/o Late Ram Ji Yadav
R/o 2/228, Vibhav Khand, Gomtinagar
P.S.- Gomtinagar, District-Lucknow
3. I.D.B.I. Bank, Ashok Marg Branch, Lucknow
through it's Manager ..............Opp. Parties
Counsel for Applicant:- Mukul Rakesh
Counsel for Respondent:- A.G.A.
Hon'ble Vishnu Chandra Gupta,J.
Judgement
By means of this petition under Section 482 Cr.P.C. petitioner Shanish Kumar Misra has challenged the order dated 15.07.2005 passed by Additional Chief Judicial Magistrate, Court No. 5, Lucknow in Complaint Case No. 634 of 2005 summoning the petitioner under Section 138 Negotiable Instrument Act (herein after referred to as the 'N.I. Act') and has also prayed for quashing the Complaint Case No. 634 of 2005, under Section 138 N.I. Act, P.S. Chinahat, District- Lucknow filed by Opposite Party No. 2- Bhanu Yadav.
The brief facts for deciding this petition are that the opposite party no. 2 the complainant, filed a complaint under Section 138 of N.I. Act against the petitioner on the allegation inter-alia that the complainant is owner of business of his proprietorship firm titled as M/s Arch-En-Engg. Consultants and working as contractor for construction of the buildings. The petitioner and Opposite Party No.2 have entered into an agreement for construction of building of Opposite Party No.2 on contract basis by executing an agreement dated 17.05.2004. In discharge of his liability of payment due against the petitioner, the petitioner issued a cheque of Rs. 50,000/- dated 05.01.2005 having No.269002 of I.D.B.I. Bank Ltd. the Opposite Party No.3. This cheque was dishonoured when presented in the Bank on account of insufficient founds. The complainant after serving notice of demand filed present complaint under Section 138 N.I. Act. The learned Magistrate after considering the material on record has passed a reasoned order summoning the petitioner to face trial under Section 138 N.I. Act. Aggrieved by this order and consequent proceedings initiated in form of complaint case No.634 of 2005 filed this petition.
Heard Shri Mukul Rakesh, learned counsel for the petitioner and learned AGA and perused the record of the case. Non appeared on behalf of the opposite parties No.2 and 3 in spite of sufficient service.
The order has been assailed firstly on the ground that the cheque was issued in the name of Firm and Firm has not filed the complaint, who is the holder in due course of the cheque in question, therefore, the complaint is not maintainable. Learned Counsel for the petitioner in support of his contention has relied upon the judgment of Apex Court in case of Milind Shripad Chandurkar Vs. Kalim M. Khan & Anr., 2011 (3) JIC 60 (SC) =(2011) 4 SCC 275. In para 26 at page 280 in SCC the Apex Court held as under:
"26. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be the payee himself and thus, entitled to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth the name with the said firm, namely, Vijaya Automobiles. Mere statement in the affidavit in this regard, is not sufficient to meet the requirement of law. The appellant failed to produce any documentary evidence to connect himself with the said firm."
I have gone through the complaint. it has been clearly averred in para 2 of the complaint that the complainant is the sole proprietor of the Firm. Being sole proprietor of the Firm he shall be the holder in due course of the cheque in question and is competent to file the complaint as held in Shanker Finance and Investment V. State of Andhra Pradesh and ors, (2008) 8 SCC 536.
At this stage in view of clear averment made in the complaint, the complaint can not be thrown out on the ground that complainant has not established be the sole proprietor of Firm. The stage to establish the fact arises only when parties are allowed to adduce evidence during trial. The judgement in Milind Shripad case (supra) has been delivered by the Apex Court while considering the conviction of accused after full trial and and setting a side the conviction recorded by trial court and Appellate Court by the High Court in Criminal Revision. Therefore Milind Shripad case (Supra) is not extending any help to the petitioner.
The order dated 15.07.2005 has also challenged on the ground that the petitioner has issued instruction to the Bank for stop payment of the cheque in question and the Bank has also deducted a sum of Rs. 60/- which is evident from statement of account showing deduction of Rs. 60/- in the aforesaid account.
In this case the memo issued by the Bank was to the effect that cheque in question was dishonoured on account of insufficient funds in the account of Opposite Party No.2. There is noting on record that instructions issued to the bank has not followed by the bank which were given in respect of the cheque in question. More over it is not in dispute that on the date of presentation of the cheque sufficient funds were not available in the account of the petitioner, of which cheque was issued to Opposite Party No.2.
More over the stop payment instructions issued by the drawer leading to dishonour of cheque constitutes offence under section 138 of NI Act. The burden would be on the accused to prove that he had sufficient funds to clear the amount under the cheque and stop payment instructions were issued for some other reasons. This defence could be looked into in view of section 139 of NI Act during trial and not at this stage as held by Hon'ble Supreme Court in Goa Plast (P) Ltd. Vs. Chico Urshala D'souza, AIR 2004 SC 408=(2004) 4 SCC 235 and by Allahabad High Court in Harbhajan Singh Vs. Stae of Uttar Pradesh, (2007) 1 BC 551 (All)
Therefore, I do not find any substance in the argument of the learned counsel for the petitioner.
No other point has been pressed nor argued on behalf of petitioner.
The petition sans merit and is accordingly dismissed.
Order Date :- 30.10.2014
R.K.P.
