Om Prakash Gupta vs State & Anr
2014 Latest Caselaw 831 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Crl.M.C.1084/2011

%                        Date of Decision: February 13, 2014


OM PRAKASH GUPTA                                              ..... Petitioner
                Through :                Mr.D.C.Mathur, Sr.Advocate with
                                         Mr.Sushil Bajaj, Adv.

                    versus

STATE & ANR                                           ..... Respondents
                             Through :   Mr.Arun Batta, Adv. for
                                         respondent no.2.

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J. (ORAL)

*

1. This is a petition under section 482 of Code of Criminal Procedure wherein prayer is made for setting aside the impugned order dated 3 rd January, 2011 passed by the ld.Metropolitan Magistrate (NW), Rohini Court, Delhi whereby the petitioner has been summoned for an offence punishable under section 138 of the Negotiable Instruments Act, 1881.

2. The respondent no.2/complainant had filed a complaint under section 138 of the Negotiable Instruments Act, 1881 alleging therein that he had lent a friendly loan of Rs.20,80,000/- to the petitioner in cash on 4.4.2009. It is alleged that petitioner promised to return the same in the month of May, 2009 and for that purpose had issued a cheque dated 8.5.2009 bearing no.444770 drawn on Indian Overseas Bank, Tolstoy Marg, New Delhi in

favour of the respondent no.2/ complainant. On presentation of the said cheque to the bank i.e., Indian Overseas Bank, Shalimar Bagh, Delhi for realization through its banker, the same was returned by the bank vide return memo dated 7.12.2009 with the remarks Äccount closed". It is alleged that within 30 days of receipt of said information from its bank, respondent no.2/ complainant had sent a legal notice on 4.1.2010 through his lawyer to the petitioner under section 138 of the Act requesting him to make payment within a period of 15 days from the date of receipt of the said notice. However, no payment was made by the petitioner. On 18th February, 2010, complainant/respondent no.2 filed the aforesaid complaint against the petitioner.

3. On 20th February, 2010, the ld.M.M. ordered that the instant case be put up for examination of respondent no.2/complainant and adjourned the matter to 20th March, 2010. On the said date, respondent no.2/ complainant tendered his evidence by way of affidavit Ex.C-1. On the said date, the ld.M.M. observed that since the "return memo" is 7 months older than the date of the cheque and there is nothing on record on what date the cheque in question was presented, as such the case was put up for pre-summoning evidence on 24.4.2010. On the said date, on the request of respondent no.2/ complainant, the matter was adjourned to 8.7.2010 for the purpose as already fixed. On 8.7.2010, Sh.J.P.Garg, Branch Manager, Indian Overseas Bank, Shalimar Bagh appeared before the ld.M.M. However, the said witness had not brought the relevant record, as such, the court bound down the said witness for the next date and the case was adjourned to 6 th August, 2010. On the said date, the ld.M.M was on leave. The bank witness was present. However, the said witness was discharged un-

examined by the Link Magistrate and the case was adjourned for 3.1.2011. On the said date, pre-summoning evidence was closed by the complainant/respondent no.2 and the ld.M.M. heard the arguments on the point of summoning and observed that there was prima facie sufficient evidence on record to summon petitioner and accordingly summoned the petitioner for 6.4.2011. Aggrieved with the same, present petition has been filed.

4. Learned senior counsel for the petitioner has submitted that the date on the cheque has been altered by respondent no.2/complainant from 08.05.2004 to 08.05.2009. Besides, the alteration of date, the "return memo" is 7 months after the date of issuance of cheque, as such exceeds the six months validity period within which the said cheque ought to have been presented. It is submitted that the ld.M.M. vide order dated 20 th March, 2010 had observed that since the return memo is 7 months older than the date of the cheque and there is nothing on record as on what date the cheque in question was presented, the ld.M.M. had put up the matter for pre- summoning evidence. Thereafter, the respondent no.2/ complainant had moved an application for summoning the bank witness i.e., Branch Manager of Indian Overseas Bank, Shalimar Bagh and the said witness had also appeared on 6.8.2010. However, the said witness could not be examined as the Presiding Officer was on leave and the witness was discharged by the Link M.M. unexamined. It is submitted that in these circumstances the ld.M.M. ought not have summoned the petitioner without recording its prima facie satisfaction about the date of presentation of the cheque by the respondent no.2 in the bank. It is submitted that the the ld.M.M. summoned the petitioner/accused in a casual manner. It is submitted that there is prima

facie no evidence on record to show that cheque in question was presented to the bank within a period of six months. In these circumstances, Ld.M.M. ought not have summoned the petitioner. Learned senior counsel for the petitioner has submitted that in a catena of judgments, the Supreme Court has held that for commission of an offence u/s 138 of the Act, it is mandatory that the cheque be presented for encashment within six months from the date it is drawn or within its validity period. In support of the contention, learned counsel has relied upon Shri Ishar Alloy Steels Ltd vs. Jayaswals Neco Ltd (2001) 3 SCC 609. It is further contended that when there is no prima facie evidence on record to show as to when the cheque in question was presented to the bank for encashment, the impugned order passed by the ld.M.M. summoning the petitioner is without due application of mind, as such the same is liable to be set aside.

5. On the other hand, learned counsel for respondent no.2/complainant has submitted that "return memo" dated 7.12.2009 shows that cheque was returned due to the reason "Account Closed". In these circumstances, the order summoning the petitioner is legal and valid and is not liable to be set aside, as is prayed.

6. I have heard the submissions made and perused the material on record.

7. The ingredients of section 138 of the Negotiable Instruments Act are as under:-

" (1)that the cheque must be drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, and (2)that the cheque must have been returned by the bank unpaid either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds

the amount to be paid from that account by an agreement made with that bank. But nothing in the above section however would apply unless

(a)the cheque has been presented before the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b)the payee or the holder in due course of the cheque, as the case may be makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within (30 days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice."

8. The Supreme Court in Shri Ishar Alloy Steels Ltd (supra) has observed as under:-

"It has further to be noticed that to make an offence under Section 138 of the Act, it is mandatory that the cheque is presented to "the bank" within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. It is the cheque drawn which had to be presented to "the bank" within the period specified therein."

9. In the present case, there is a controversy about date of issue of cheque in question also as has been noted above. However, the same cannot be gone into at this stage. Assuming the petitioner issued cheque dated 8.5.2009, as is alleged, the "return memo" Ex.CW-1/2 issued by Indian Overseas Bank, Shalimar Bagh is dated 7.12.2009 i.e., return memo is after 7 months from the date of issue of cheque. It is no where stated in the

complaint under section 138 of the Negotiable Instruments Act as to when the cheque in question was presented by respondent no.2/ complainant to the bank. Even in the legal notice Ex.CE 1/3, the date of presentation of cheque to the bank has not been mentioned. Even during the arguments, learned counsel for respondent no.2/ complainant was asked to show if respondent no.2/complainant was having any depositing slip showing prima facie proof as to when the said cheque was presented to the bank. The ld.counsel has expressed his inability to produce the same.

10. The aforesaid complaint u/s 138 of the Act was listed before the ld.M.M. for the first time on 20.2.2010. The same was put up for complainant/respondent no.2 evidence on 20th March, 2010. The complainant tendered his affidavit Ex.C1 by way of evidence. In the said affidavit Ex.C1, no date was mentioned as to when cheque in question was presented to the bank. On 20.3.2010, the ld.M.M. observed that since "return memo" is 7 months older than the date of the cheque and there is nothing on record as on what date the cheque in question was presented to the bank and adjourned the matter for pre-summong evidence on 24.4.2010.

11. In compliance of the aforesaid order, respondent no.2/ complainant had also moved an application for summoning the bank official to prove the same. Perusal of the record shows that on 8.7.2010, the bank witness appeared but he did not bring the relevant record, accordingly the ld.trial court bound down the said witness for the next date of hearing i.e., 6.8.2010 to produce the relevant record. On 6.8.2010, the ld.M.M was on leave. On the said date, the bank witness was discharged un-examined by the Link Magistrate. On the next date, without recording the pre-summoning

evidence, petitioner has been summoned. Perusal of material on record shows that the petitioner has been summoned without there being any prima facie material on record as to when the cheque in question was presented by respondent no.2/complainant to the bank i.e., whether within a period of 6 months from the date on which the cheque was drawn or within the period of its validity.

12. In these circumstances, the impugned order summoning the petitioner is liable to be set aside. Accordingly, the same is set aside. The matter is remanded back to the ld.M.M. for recording pre-summoning evidence in terms of its earlier order as discussed above and thereafter proceed with the matter in accordance with law.

The respondent no.2/complainant shall appear before the ld.M.M. on 10.3.2014. Trial court record be sent back with copy of this order.

The petition stands disposed of accordingly. There is no order as to costs.

VEENA BIRBAL, J FEBRUARY 13 , 2014 ssb