Bombay High Court
Shri Sada Vijay Kumar vs State Of Maharashtra & Anr on 18 December, 2012
Bench: K.U. Chandiwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.638 OF 2012
WITH
CRIMINAL APPLICATION NO.639 OF 2012
WITH
CRIMINAL APPLICATION NO.640 OF 2012
WITH
CRIMINAL APPLICATION NO.772 OF 2012
WITH
CRIMINAL APPLICATION NO.773 OF 2012
Shri Sada Vijay Kumar
ig ... Applicant
V/s.
State of Maharashtra & Anr. ...Respondents
---
Mr. Dinesh Tiwari for the Applicant.
Mr. D.R. More, APP for the State.
Mr. A.P. Mundargi, Sr. Counsel with Mrs. Pravina Kanani a/w Mr.
Sunil D'souza for Respondent No.2.
---
CORAM : K.U. CHANDIWAL, J.
DATE : 18th DECEMBER, 2012
P. C. :
. Heard finally.
2. In proceedings under Section 138 of the Negotiable
Instrument Act process is challenged by the Applicant.
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3. Applicant had availed financial facilities from
Respondents HDFC Bank Rs.1.95 crore on 15th September, 2006 and
Rs.4.45 crore in 2007. Payment schedule was not adhere. Defence
is, Bank had assured cash credit facility of Rs.50 crore. Under a
letter, addressed by the Applicant to the Bank dated 14th September,
2008, Applicant had issued five cheques with different quoted
amounts. On presentation of said cheques, they were dishonored
owing to insufficiency of funds. It was followed by statutory notice
and then 5 complaints under Sections 138, 141 of the Negotiable
Instrument Act was filed.
4. Learned Counsel says, whether in a cheque of such type
when drawer and drawee is the same, could it be a liability of the
Applicant to answer the claim or to face the prosecution in terms of
Section 138 read with Section 141 of the Negotiable Instrument Act.
5. In all complaints, Applicant's pleas are recorded, then in
4 complaints affidavit of evidence is tendered. Mr. Tiwari could not
dispel this fact. Legal position is indicated in the matter of
Subramanium Sethuraman Vs. State of Maharashtra & Anr.,
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reported in 2004 SCC 712 (equivalent to 2004 STPL(DC) 549 SC)
in paragraph 16 which reads as under :-
"16. The next challenge of the learned Counsel for the
appellant made to the finding of the High Court that
once a plea is recorded in a summons case it is not
open to the accused person to seek a discharge cannot
also be accepted. The case involving a summons case
is covered by Chapter XX of the Code which does not
contemplates a stage of discharge like Section 239
which provides for a discharge in a warrant case.
Therefore, in our opinion the High Court was correct in
coming to the conclusion once the plea of the accused
is recorded under Section 252 of the Code the
procedure contemplated under Chapter XX has to be
followed which is to take the trial to its logical
conclusion."
6. In paragraph 19 of the said Judgment, import of Section
482 of the Code of Criminal Procedure is discussed which reads as
under :-
"19. We see that this Court while dismissing earlier
S.L.P. As withdrawn had left the question of legality of
the notice open to be decided at the trial. Therefore,
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legitimately the appellant should raise this issue to be
decided at the trial. Be that as it may, we cannot
prevent an accused person from taking recourse to a
remedy which is available in law. In Adalat Prasad's
case we have held that for an aggrieved person the
only course available to challenge the issuance of
process under Section 204 of the Code is by way of a
petition under Section 482 of the Code. Hence, while
we do not grant any permission to the appellant to file
a petition under Section 482, we cannot also deny him
the statutory right available to him in law. However,
taking into consideration the history of this case, we
have no doubt the concerned Court entertaining the
application will also take into considerations i.e. raised
by the respondent in this case as to delay i.e. being
caused by the entertainment of applications and
petitions filed by the accused."
7. The afore referred legal position in fact, does not allow
to entertain these Petitions and only recourse available is to face
trial. However, since an important question is raised, same needs
to be dealt with.
8. The cheque was crossed issued to HDFC Bank Account
M/s. K. Sada Vijay kumar Beedi Leaves Merchant against Account No.
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3752790000051. The drawer of the cheque was M/s. K. Sada Vijay
Kumar Beedi Leaves Merchant, by authorised signatories of cheque
No. 414892 drawn on the said Bank, dated 30 th September, 2009.
The cheque returning memo refers to K. Sada Vijay Kumar Beedi
Leaves Merchant dated 30th September, 2009.
9. Mr. Tiwari submits that the legal position in identically
placed situation was indicated by this Court in the matter of M/s.
Credential Finance Limited & Others Vs. State of Maharashtra &
Another decided on 1st March, 2000 reported in 2000 (3) Mh.L.J.
544. The learned Single Judge of this Court giving reference to the
provisions of Sections 7, 123, 124, 125 and 131 of the Negotiable
Instrument Act, 1881 has held that there could not be any liability
in terms of Section 138 of the Negotiable Instrument Act against
the Payee of the cheque and the observations of the learned
Additional Sessions Judge was disapproved.
10. The same learned Single Judge in the matter of
Ramesh Deshpande Vs. Panjab and Sind Bank, reported in
2000 (0) AIJ- MH 123889, by order dated 3rd April, 2000 explained
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the effect of drawee, drawer's cheque, bills of exchange, dishonor
of cheque for insufficiency of fund in the account and placed
reliance on the aforementioned Judgment of M/s. Credential Finance
Limited Later order was carried to Supreme Court and the Hon'ble
Supreme Court in the matter of Panjab and Sind Bank V. Vinkar
Sahakari Bank Ltd. and Ors., reported in (2001) 7 SCC 721
overruled the Judgment and order dated 3rd April, 2000.
11.
The cheques were post dated cheques totally valued for
Rs.3.70 crores. There is non-compliance of decision of meeting with
the officials of the HDFC Bank in discharging of liability. In banking
system, a borrower issues a cheque to the financer Bank from his
account and the same is credited to loan account. In such event
the endorsement as above is not unusual or illegal. It was thus a
payment made by the borrower to HDFC Bank in the loan account
M/s. K. Sada Vijay Kumar and consequently, in terms of Section 9 of
the Negotiable Instrument Act, the bank will be holder in due course
of the said cheque.
12. Section 9 of Negotiable Instrument Act conceive "Holder
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in due course" means any person who for consideration became the
possessor of a promissory note, bill of exchange or cheque if payable
to bearer, or the payee or indorsee thereof, if (payable to order,)
before the amount mentioned in it became payable, and without
having sufficient cause to believe that any defect existed in the title
of the person from whom he derived his title. Thus, the three
stipulations envisaged therein are necessarily carved out. These
facts, are explained by the Hon'ble Supreme Court in the matter
referred above.
14. The argument canvassed by Mr. Tiwari in respect of non-
existence of drawee or the Payee M/s. K. Sada Vijay Kumar and
drawer being the same could not be prosecuted, is unconceivable.
Section 139 of the Act reveals that first factor to be satisfied for
presumption is that, such person should be Holder of the cheque.
The complainant has to be either a payee or holder in due course of
the cheque. Legislative object behind the privisions has to be borne
in mind and need not be defeated. The Bedrock of section 9 is
entitlement of holder. The presumption available under Section
118(G) of the Negotiable Instrument Act comes into operation only
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at the time of the trial. In present case, presumption will prevail
against the Applicant. The cheque was issued by Applicant in
discharge of liability of loan to the Bank and naturally will have
reference to his account where it was to be credited. Court has to
presume a negotiable instrument to be for consideration unless
existence of consideration is disproved. Taking survey of above
facts, the view expressed by the learned Single Judge of this Court
having not approved by the Supreme Court as recorded
hereinabove, I find no force in the contentions of the Applicant.
15. Another facet in the matter is, statutory notice was
served upon the Applicant. The Applicant did not file reply in four
matters and reply is filed only in one matter i.e. Criminal
Application No. 772 of 2012. He did not challenge contentions
canvassed by the Bank and mutely accepted the notice. In the
situation, the points raised by the Applicant will not be available to
question the prosecution in terms of Section 138 of the Negotiable
Instrument Act. Applications dismissed with costs.
16. Observations are restricted primarily to the issues raised.
(K.U. CHANDIWAL, J.)
