Allahabad High Court
Rajendra Tour And Travels vs State Of U.P. And Another on 7 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:82599
Court No. - 92
Case :- APPLICATION U/S 482 No. - 13212 of 2024
Applicant :- Rajendra Tour And Travels
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Piyush Kumar Shukla,Swatantra Kumar Singh,Virendra Singh
Counsel for Opposite Party :- G.A.
Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard learned counsel for applicant and Sri Rajeev Kumar Sonkar, learned State Law Officer for the State.
2. The instant application has been moved on behalf of the applicant to quash summoning order dated 30.01.2023 as well as entire proceedings of Complaint Case No.27387 of 2022 (Nitin Kumar Vs. Rajendra Toor and Travels), under Section 138 N.I. Act, Police Station Civil Line, District Muzaffar Nagar, pending in the court of learned Additional Judge, Additional Court 138 N.I. Act, Muzaffar Nagar.
3. Contention of learned counsel for the applicant is that cheque in question was lost in the year 2020. A police complaint was filed by the applicant in the year 2020 itself. Thereafter, the bank was also informed about the missing of cheque through application dated 25.10.2020. It is further submitted that the missing cheque will not attract the liability under Section 138 N.I. Act. In support of his contention, learned counsel for the applicant has relied upon the judgment passed by Co-ordinate Bench of this Court in the case of Boby Anand @ Yogesh Anand Vs. State of U.P. and another, Application U/S 482 No.7631 of 2008. In that case, Hon'ble Court after relying the judgment of two judges' Bench of the Apex Court in the case of Raj Kumar Khurana Vs. State of (NCT OF DELHI) & Another, reported in 2009 6 SCC 72, observed that if cheque is returned by the bank with the endorsement 'the cheque reported lost', then bouncing of such cheque will not attract the liability under Section 138 N.I. Act.
4. After hearing of learned counsel for the applicant as well as learned A.G.A. for the State and on the perusal of record, it is clear that the cheque in question was returned with return memo having endorsement 'stop payment' and Hon'ble Apex Court in the judgment of three Judges' Bench of Hon'ble Apex Court in the case of M/S. Modi Cements Ltd. Vs. Shri Kuchil Kumar Nandi reported in (1998) 3 SCC 249 observed that whether the cheque bounced on the ground of 'stop payment' will attract liability under Section 138 N.I. Act or not, that will be seen at the time of trial and at the time of summoning, object of Sections 138 and 139 N.I. Act should be kept into mind. Paragraph nos.16, 18 and 21 of the aforesaid judgment are quoted as under:-
"(16) We see grate force in the above submission because once the cheque is issued by the drawer a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawer or to the Bank for stoppage of the payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of a cheque in due course. The object of Chapter XVII, which is intituled as "OF PENALTIES IN CASE OF DISHONOR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS" and contains Sections 138 to 142, is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques. It is for this reason we are of the considered view that the observations of this Court in Electronics Trade & Technology Development Corporation Ltd., in paragraph 6 to the effect "Suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions. Sections 138 does not get attracted", does not fit in with the object and purpose for which the above chapter has been brought on the Statute Book.
18. The aforesaid propositions in both these reported judgments, in our considered view, with great respect are contrary to the spirit and object of Sections 138 and 139 of the Act. If we are to accept this proposition it will make Sections 138 a dead letter, for, by giving instructions to the Bank to stop payment immediately after issuing a cheque against a debt or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that a deemed offence was committed. Further the following observations in para 6 in Electronics Trade & Technology Development Corporation Ltd.
"Sections 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce the payee or holder in due course to act upon it. Sections 138 draws presumption that one commits the offence if he issues the cheque dishonestly"
(Emphasis supplied)
in our opinion, do not also lay down the law correctly.
(21) It is needless to emphasize that the Court taking cognizance of the complaint under Sections 138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly gets an opportunity under Sections 139 of the Act to rebut the presumption at the trial. It is for this reason we are of the considered opinion that the complaints of the appellant could not have been dismissed by the High Court at the threshold."
5. Judgment relied upon by learned counsel for the applicant in the case of Boby Anand @ Yogesh Anand Vs. State of U.P. and another (supra), the Court has not considered the three Judges' Bench judgment of Hon'ble Apex Court in M/S. Modi Cements Ltd. Vs. Shri Kuchil Kumar Nandi (supra) and Co-ordinate Bench of this Court has relied upon the judgment of two Judges' Bench passed in the case of Raj Kumar Khurana Vs. State of (NCT OF DELHI) & Another (supra), wherein the return memo shows the endorsement of bank 'cheque reported lost', which is not the condition in the present case and even otherwise the judgment of Hon'ble Apex Court passed in the case of Raj Kumar Khurana Vs. State of (NCT OF DELHI) & Another (supra) had not considered the judgment of three Judges' Bench passed in M/S. Modi Cements Ltd. Vs. Shri Kuchil Kumar Nandi (supra).
6. Even otherwise, all the arguments raised by learned counsel for the applicants are his defence, same cannot be considered at the time of quashing and these grounds are available to the applicant during trial.
7. With the aforesaid observation, present application is dismissed.
Order Date :- 7.5.2024
Atul
