Mahadev Corporation vs Allahabad Bank
2005 Latest Caselaw 740 Del

JUDGMENT

H.R. Malhotra, J.

1. These three revision petitions arise out of similar orders passed by the Metropolitan Magistrate on the application moved by the petitioner/accused for recalling the summoning orders earlier issued against them for commissions of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act). There were three cheques which were dishonoured and therefore necessity arose for the complainant to file three separate complaints against the petitioner/accused.

2. Since similar question arises in all the three revisions petitions, therefore , these three petitions are being disposed of together by one common judgment. Brief facts as emerges from these files are that the petitioner company was allowed cash-credit facility by the respondent bank and accounts in this regard being Account No. CC-500219 was opened by the respondent bank. As on 4th December,1995 an outstanding balance of Rs. 83,38,616.10 was shown in the accounts against the permitted operator limit of Rs. 32,52,000/-.

3. The respondent bank addressed a letter to the petitioner corporation on 4th December,1995 asking them to deposit the amount of Rs. 83,38,616.10. The petitioner, in reply, vide their letter dated 19th December,1995 acknowledged its liability and also forwarded seven post dated cheques for Rs. 8,00,000/- each so as to cover the repayment of the overdrawn amount. The petitioner had issued these cheques in their own name on an account being maintained by them in Corporation Bank, Paschim Vihar, New Delhi.

4. On the cheques being dishonoured, a notice as specified in Section 138 of the Act was issued to the petitioner to which no reply was given by the petitioner/corporation and accordingly the respondent instituted the complaint under Section 138 of the Act. The Metropolitan Magistrate after recording preliminary evidence came to the conclusion that prima facie a case for commission of offence punishable under Section 138 was made out and accordingly summoned the petitioner as an accused which order was assailed by them by making an application before the same Metropolitan Magistrate who maintained his earlier order and dismissed the application for recalling the order. It is against that impugned order the petitioner has come in revision.

5. It is urged by the learned counsel for the petitioner that the respondent was not the holder in due course of the cheques in question and the learned trial court misinterpreted the Section 9 of the Act and even otherwise there was no allegation appearing in the complaint to the effect that the respondent was holder in due course of the cheques. It is further urged that the petitioner had drawn the cheques in its own name and therefore it cannot be said that the respondent became holder in due course of the cheques in question as the same were never transferred nor endorsed in their favor and the respondent bank was merely a collecting bank and could not in any circumstances be termed as holder in due course of the cheques as it had made no credit entry in respect of the cheques in question in the account of the petitioner No. 1 maintained in the books of the respondent.

6. On the other hand learned counsel for the respondent submitted that the provisions of Section 138 of the were applicable to the facts of the case and the trial court rightly appreciated the import of Section 138 of the Act by holding that the respondents were holders in due course of the cheques as the cheques if honoured it would have benefited the respondent and not anybody else. He urged that the petitioner committed the offence punishable under Section 138 of the Act as the cheques so issued by them were returned by their bankers Corporation Bank on the ground as specified in the Act and therefore the petitioner rendered themselves liable for being tried and punished according to law. It was urged by the learned counsel for the respondent that the object of enacting Section 138 of the Act was to enhance the acceptibility of the cheques for settlement of liability by making the drawer liable to penalty in case of bouncing of cheques due to insufficient arrangements made by the drawer, which adequately works to prevent the harassment of drawer. He also referred to Section 118(g) of the Act which states that unless contrary to, it shall be presumed that the holder of the negotiable instrument is a holder in due course, provided that where the instructions had been obtained from its lawful owner or any person in lawfully custody thereof on the strength of provisions he argued that the petitioner drew the cheques from the corporation on an account maintained by them and delivered it to the respondent bank to be deposited in their account towards the over-drawing in cash-credit account so as to regularise the said account.

7. I have heard learned counsel for the parties on this aspect and also having gone through the provisions of Section 138, 118(g) and Sec. 46 of the Act, I am of the opinion that the respondent is a person who is a holder of the due course of the cheques as definition of holder in due course clearly envisages that any person who for consideration became possessor of Promissory Note, Will or Cheques shall be holder in due course. As the cheques which were issued by the petitioner though in their own name but were ultimately to be credited in the account of the respondent and thus respondents were to be beneficial of such payments and now since they have been put to disadvantage because of dishonouring of such cheques, the petitioner cannot agitate that since the cheques in question were not issued in the name of the respondent but in the name of the petitioner themselves and therefore provisions of Section 138 are not attracted to the case, the respondent being not holder in due course of cheques. Such an argument do not hold water, it being devoid of any substance.

8. Therefore the impugned order cannot be sustained in the eyes of law, it being against the provisions of Section 118(g) and also Section 46 of the Act. The case of the respondents squarely and aptly fits into the provisions of Section 138. The petitioners were rightly summoned under such provisions and the subsequent orders passed by the Magistrate recalling the summoning order is bad in law and needs to be set aside as such.

9. In the result, the revision petition is dismissed and the petitioners shall be put to trial for commission of offence punishable under Section 138 of the Act.