Dr Shreeyansh Rayappa Nandeshwar vs Dr Prakash Ponde
2021 Latest Caselaw 1454 Kant

                            1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU    R
         DATED THIS THE 28TH DAY OF JANUARY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION No.3991/2020

BETWEEN:

Dr. SHREEYANSH RAYAPPA NANDESHWAR,
S/O RAYAPPA LAXMANA RAO NANDESHWAR,
AGED ABOUT 59 YEARS,
R/O NO.765/2D, 'RATNATRAY',
BHAGYA NAGAR, 2ND CROSS,
BELGAUM - 591 006.                         ... PETITIONER

         (BY SRI. VARDHAMAN V. GUNJAL, ADVOCATE)

AND:

Dr. PRAKASH PONDE,
S/O. SUBRAO PHONDE,
AGED ABOUT 56 YEARS,
AGRICULTURIST,
R/O. PLOT NO.1, SAMARTH COLONY,
HINDALGA ROAD,
BELGAVI-591 108.                          ... RESPONDENT

         (BY SRI. SANDESH J. CHOUTA, ADVOCATE FOR
            SRI. CHANDRASHEKAR R.P, ADVOCATE)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE
2ND   ADDITIONAL   DISTRICT    AND   SESSIONS   JUDGE,
CHIKKAMAGALURU PASSED IN CRL.R.P.NO.177/2019 DATED
04.03.2020 ORDER UPHOLDING THAT THE SUMMONS ISSUED
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BY 2ND ADDITIONAL CIVIL JUDGE AND JMFC, CHIKKAMAGALURU
IN PCR NO.252/2019 AND C.C.NO.690/2019 DATED 08.05.2019.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.01.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                            ORDER

This petition is filed under Section 482 of Cr.P.C. praying

this Court to set aside the order dated 04.03.2020 passed in

Crl.R.P.No.177/2019 by the II Additional District and Sessions

Judge at Chikkamagaluru, upholding the issuance of summons

issued by the II Additional Civil Judge & JMFC., Chikkamagaluru,

in PCR No.252/2019 subsequently numbered as

C.C.No.690/2019 vide order dated 08.05.2019.

2. The factual matrix of the case is that, the respondent

herein had filed a private complaint under Section 200 of Cr.P.C,

for the offence punishable under Section 138 of the Negotiable

Instruments Act, 1881, ('NI Act' for short), contending that the

petitioner herein had borrowed a sum of Rs.35,00,000/- from

the respondent herein as a hand loan. When demanded the

repayment of the said amount, the petitioner herein has issued a

self cheque dated 22.12.2018 for a sum of Rs.5,00,000/-

towards part payment and assured that the same will be

honoured upon presentation. But the same was returned with an

endorsement as 'account closed' and hence, the proceedings

under Section 138 of the NI Act.

3. The learned Magistrate after perusing the materials

on record and after recording of sworn statement of the

complainant took the cognizance of offence punishable under

Section 138 of the NI Act. Being aggrieved by the said order, he

had preferred Crl.R.P.No.177/2019 and the Revisional Court also

confirmed the order of the Magistrate in coming to the

conclusion that the grounds, which have been urged, cannot be

adjudicated conclusively at the stage of issuance of process and

the scope of revision is also limited. The allegations made in the

complaint on the face of the record have to be accepted and

falsity cannot be entertained by the Revisional Court. Hence,

the present petition is filed.

4. The grounds urged in this petition are that,

undisputedly the alleged date of advancement of loan was

barred by limitation. Without any material, a self cheque has

been treated as an acknowledgement when it is not even

pleaded by the complainant. Thereupon no element of violation

of Section 138 of the NI Act, taking cognizance and issuing

summons is per-se illegal and a manifest error is apparent on

the face of the record. It is also contended that no detailed order

is required to pass at the time of taking cognizance but the short

cut adopted by the Magistrate is also not acceptable and he did

not apply his mind on the material available on record.

5. The learned Magistrate before directing to registering

the complaint and issue summons, has not addressed himself on

the legal question whether there is criminal liability on the part

of the petitioner to attract the provisions of Section 138 of the NI

Act. It is also contended that the cheque issued is a self-cheque

is not in dispute and there is no endorsement and with no such

endorsement, the same cannot be holder-in-due course and he

was having the said self cheque written it more than two months

back. There are very strong assertions about the claim of the

respondent. It is contended that a cardinal rule of evidence, not

one of technicality but of substance, which is dangerous to

depart from that where written documents exist, they shall be

produced as being the best evidence of their own contents. The

Trial Court has committed a grave error by misleading the

complainant. The very approach of both the Magistrate as well

as the Revisional Court is an error apparent on the face of the

record and failed to consider the grounds urged before the

Magistrate and Revisional Court that the claim is barred by

limitation. The cheque is also kept for a period of two months

and there is no endorsement and in the absence of endorsement

when the cheque was presented, it does not attract Section 138

of the NI Act. It is also contended that the respondent is not a

holder-in-due course of the cheque. The learned counsel

reiterating the grounds urged in this petition vehemently

contends that for quashing of this petition he relying on four

grounds.

6. The first ground urged by the learned counsel for the

petitioner is that the complaint averments disclose that the

alleged loan transaction is more than four years and the same is

barred by limitation. The issuance of self-cheque also does not

constitute an offence and also the same is not an

acknowledgement.

7. The other contention of the learned counsel for the

petitioner is that the cheque though it is a self-cheque, the

respondent was holding the same for a period of two months and

it creates the suspicion in the mind of the Court. The third count

of argument is that without an endorsement, the same was

presented and not in dispute that it is a self-cheque. When such

being the case, it does not attract Section 138 of the NI Act.

8. The learned counsel for the petitioner would submit

that the respondent is not a holder-in-due course and hence, it

requires an interference of this Court exercising the powers

under Section 482 of Cr.P.C.

9. Learned counsel for the petitioner in support of his

arguments, he relied upon several Judgments and also filed the

written submissions in addition to the oral submissions. The

learned counsel in the written submissions also extracted several

Judgments and mainly pointed out that the question arises

before the Court is whether the cheque issued for discharge of

time barred debt would still form within the purview of Section

138 of the NI Act. The question raised by the petitioner's

Counsel is that whether the bearer cheque issued requires to be

endorsed by the drawer of cheque payable to self bearer not

struck requires the endorsement to whom payable. The learned

counsel also would contend that whether the Ex-Magistrate

ought to look into both complaint and acknowledging documents

together with the statements and scrutinized to arrive at a

conclusion that the offence is made out.

10. The fourth ground raised by the learned Counsel is

that whether the issuance of summons should examine as to

whether the offence is made out under Sections 138 and 139 of

the NI Act constituting an offence. The learned counsel raising

all these questions extracted the meaning under Section 138 of

the NI Act, i.e., "debt or other liability".

11. Learned counsel for the petitioner in support of his

arguments, he relied upon the judgment in the case of

Ramakrishnan v. Gangadharan Nair & another reported in

2007 Cri.L.J. 1486, referring to this Judgment, he brought to

the notice of this Court that Section 18 of the Limitation act,

whether issuance of cheque amount to an acknowledgement

under Section 18 of the Limitation Act, but it is based on Section

25(3) of the Contract Act and Section 46 of the NI Act.

12. Learned counsel also relied upon the judgment of the

Andhra Pradesh High Court Judgment in the case of Girdhari

Lal Rathi v. P.T.V. Ramanujachari reported in 1997(2)

Crimes 658, referring to this Judgment, the counsel would

contend that there was no valid acknowledgement of liability

within the three year period of limitation referring to Section

25(3) of the Contract Act.

13. Further, learned counsel relied upon the Judgment of

this High Court in the case of H. Narasimha Rao v.

Venkataram R reported in 2007 Cri.L.J. 583, referring to this

Judgment he would contend that when the debt has become

barred by limitation the accused was acquitted.

14. Learned counsel also relied upon the Bombay High

Court Judgment in the case of Narendra V. Kanekar vs.

Bardez Taluka Co-op Housing Mortgage Society reported in

2006 Cri.L.J. 3111, he would contend that the cheque given for

the discharge of a time barred debt itself becomes a contract

under Section 25(3) and the question arises whether the same

can lead to a conviction under Section 138 of the NI Act.

15. The learned counsel also relied upon the Kerala High

Court Judgment in the case of Ramakrishnan v.

Parthasardhy, reported in 2003(2) Ker.L.T. 613, he would

contend that the question arises in this case is whether the time

barred debt within Section 25(3) of the Contract Act and further

observed that it is the failure to distinquish Civil Liability from

Criminal Liability.

16. The learned counsel also relied upon the Kerala High

Court Judgment in the case of Chacko Varkey v. Thommen

Thomas reported in AIR 1958 KER 31, referring to this

Judgment he would contend that, after the period of limitation

expires, nothing short of an express promise will provide a fresh

period of limitation; an implied promise is not sufficient.

17. The learned counsel referring to these judgments

would contend that the cheque given for discharge of time

barred debt will not constitute a promise in writing not even an

implied promise but under Section 30 of the NI Act on dishonour

give rise to Civil liability and not a Criminal liability under Section

138 of the NI Act.

18. The learned counsel also relied upon the judgment of

the Apex Court in the case of A.V. Murthy v. B.S.

Nagabasvanna reported in (2002) 2 SCC 642, wherein, the

Supreme Court has observed that with regard to about four

years back loan was advanced, the Sessions Court quashed the

complaint relying on the explanation to Section 138 of the NI

Act. The Apex Court after considering the material on record

remanded the matter for other reason. It is also contended that

the Karnataka High Court concurred but eventually the Supreme

Court reversed the Judgment of the High Court and restored the

order of Trial Court. It is observed that it may still be legally

recoverable if there is an acknowledgement in law or by way of a

written promise within Section 25(3) of the Contract Act.

19. The Apex Court in its Judgment in Sasseriyil

Joseph's case observed in A.V. Murthy's case (supra), held

that, only mean that the liability or debt should not arise out of a

transaction, which is illegal. It should be not a cheque to meet a

liability under a wagering contract which shall not be legally

enforceable. The Supreme Court was giving only an illustration

to bring home the point that the quashing was erroneous

limitation unlike an admitted wagering contract being a mixed

question of law and fact.

20. The learned counsel referring to the above

judgments would contend that specific question that limitation is

within the explanation to Section 138 of the NI Act. Thus, there

can be no question that the Division Bench Judgment of the

Kerala High Court did not lay down correct law when it held that

a cheque for a time barred debt on being dishonoured can

embroil a drawer in a criminal prosecution.

21. The learned counsel referring to the above

judgments would contend that the cheque issued for discharge

of time barred debt not comes within the purview of Section 138

of the NI Act.

22. The learned counsel with regard to question No.2 is

concerned, whether bearer cheque requires to be endorsed by

the drawer of cheque payable to self requires an endorsement

with the concerned mainly relies upon the meaning of

endorsement, particularly, in Negotiable Instruments and also

holder in due course. The learned counsel referring the same

would contend that without an endorsement cannot be a legal

tender enabling him to present the same.

23. The learned counsel also relied upon the order

passed by this Court in the case of Nabiraja v. State Bank of

India in Criminal Petition No.6816/2019 dated

29.08.2019, he would submit that in the said case there was an

endorsement. But in the case on hand, there was no such

endorsement.

24. The learned counsel with regard to the point Nos.3

and 4 raised by him submits that, whether the Magistrate ought

to look into both the complaint and accompanying documents

together to scrutinize to arrive at a conclusion that offences

made out; whether it attracts Section 138 of the NI Act

constituting an offence would contend that the Judgments

referred by the learned counsel appearing for the respondent in

the case of HMT Watches Limited v. M.A.Abida and another

reported in (2015) 11 Supreme Court Cases 776, is with

regard to High Court had intervened in the matter of disputed

facts i.e., cash and carry. In the case of S. Natarajan v. Sama

Dharman reported in AIRONLINE 2014 SC 115, there was an

admission in the books of accounts and the loan was

acknowledged and admitted. In the case of M.M.T.C. Ltd. and

another v. Medchl Chemicals and Pharma (P) Limited and

another reported in (2002) 1 Supreme Court Cases 234, it

was a case where the issue was whether or not the cheques

were issued as security. In the case of Pulsive Technologies

Private Limited v. State of Gujarat and others reported in

(2014) 13 Supreme Court Cases 18, the issue was the

accused would be liable when stop payment instructions were

issued on the allegation that complainant had failed to discharge

its obligations. In the case of Adigear International v. State

reported in 2013 SCC OnLine Del 4938, the issue was that

pleading that in partial discharge of the liability, there was no

issue of limitation.

25. The learned counsel referring to the principles laid

down in the judgments would contend that, it is settled law that

when no offence is made out the accused cannot be prosecuted

and made to be arraigned as an accused in Criminal Trial. The

learned counsel referring to the judgment in the case of Ashok

Chaturvedi & Ors v. Shitul H Chanchani & Anr, requires to

be applied.

26. The learned counsel would submit that for this

reason the petitioner has relied upon in the case of Shanku

Concretes Pvt. Ltd. v. State of Gujarat reported in 2000

Cri.L.J.1988, wherein, though Section 138 of the NI Act is

enacted as a punitive measure for due discharge of civil liability

and penal action has been prescribed, close judicial scrutiny of

the facts and circumstances of the case are held to be absolutely

necessary.

27. The learned counsel also referred to the recent

judgment of the Apex Court in the case of Basalingappa v.

Mudibasappa reported in (2019) 5 Supreme Court cases

418, and referring to this Judgment, the learned counsel would

submit that the Apex Court in this judgment, held that, the

complainant will have to initially lead evidence under Section

139 of the NI Act and rebut the presumption, which is lacking in

the present case. The learned counsel would submit that the

issuance of summons is wholly without jurisdiction. The learned

counsel vehemently contends that it is necessary that when a

sworn statement be recorded it should also contain the

ingredients of Section 139 of the NI Act when the same has not

been stated in the affidavit and also there is an admission that

the loan was allegedly received during 2013, there is clearly lack

of application of mind on part of the Magistrate in the matter of

issual of summons, therefore, the judgments relied on in

S.Natarajan's case (supra) that only after the accused rebuts

the presumption during a trial the matter can be disposed off is

far-fetched.

28. The learned counsel would submit that it is apparent

from the complaint that the claim was barred and thus the

complaint ought to have been rejected in view of the fact and

law laid down in The Bidar Urban Co-operative Bank Ltd,'s

case, wherein there is no legally recoverable debt and that the

cheque in question does not amount to acknowledgement of a

debt as has been held in the very same judgment placing

reliance on Krishna Janardhan Bhat v. Dattatrey. The

learned counsel also would submit that the Trial Court has

committed an error in not considering the fact that the cheque

did not bear any endorsement at the back to pay amount to the

bearer. It was neither an endorsement in Blank or in full.

29. Per contra, learned counsel appearing for the

respondent would vehemently contend that this petition is filed

under Section 482 of Cr.P.C, and the same has been used

sparingly. It is also contended that no grounds was urged in the

Revision regarding the same as time barred and for the first time

in this petition the said new ground has been urged.

30. The learned counsel also would submit that it is not

in dispute that a cheque issued is self-cheque and the word

"bearer" is not struck off. The complaint averments clearly

constitute an offence invoking under Section 138 of the NI Act.

The cheque which was returned with an endorsement 'Account

was closed'. Hence, it attracts Section 138 of the NI Act.

31. The learned counsel in support of his arguments, he

relied upon the four judgments with regard to the issue of not

struck off the word 'bearer'. He relied upon the Judgment of this

Court in the case of B.Sarvothama v. S.M. Haneef reported in

2013 SCC OnLine KAR 5328. The learned counsel brought to

the notice of this Court paragraph Nos.4, 8 and 9 and would

contend that the material discloses that the complainant had

received a bearer cheque for consideration and in discharge of a

legal liability and was a holder in due course, of the same. The

dishonour of the cheque was for the reason that the account of

the petitioner did not carry sufficient funds. But in the case on

hand "the account was closed". The burden was heavy on the

petitioner to establish that the cheque was not issued in

discharge of a legal liability. The learned counsel also would

contend that this Court in detail discussed with regard to when

the word "bearer" is not struck off he would become holder in

due course.

32. The learned counsel also relied upon the Judgment of

Delhi High Court in Adigear International's case (supra), and

brought to the notice of this Court that in paragraph No.13

discussed with regard to the holder in due course and also

brought to the notice of this Court in paragraph Nos.23 and 25

that, once the issuance of the cheques is admitted and as the

words "or bearer" have not been struck off, the complainant is

held to the holder of the said cheques in due course though it

was written as self and thus he is entitled to receive the cash

and on dishonouring of the said cheques, he can very well file

the complaint.

33. The learned counsel also relied upon the Judgment of

the Kerala High Court passed in the case of Sarafudheen v. T.

Muhammed Ashraf reported in 2016 SCC OnLine Ker 9538

(Criminal Appeal No.1870 of 2009), and brought to the

notice of this Court that the paragraph No.12 of the Judgment

with regard to the term "or bearer" has not been scored off. The

learned counsel in respect of time barred cheque is concerned,

referred the Judgment of the Apex Court reported in M.M.T.C.

Ltd.'s case (supra), the Apex Court in paragraph Nos.13 to 17,

discussed in detail and held that the complaint need not allege

existing of a subsisting debt or liability against which cheque

issued. Burden of proving non-existence of any debt or liability is

on the accused, to be discharged at the trial. Prior to that

complaint cannot be quashed by High Court under Section 482 of

Cr.P.C.

34. The learned counsel also relied upon the judgment of

the Apex Court in S. Natarajan's case (supra), in this

Judgment, the Apex Court held that with regard to legally

enforceable debt, the very contention that complaint alleging

time barred cheque, it is held, merely because at time of

issuance of cheque, debt had become time barred, complaint

cannot be quashed. Whether debt was time barred or not can be

decided only after evidence is adduced, it being mixed question

of law and fact.

35. The learned counsel also relied upon the Judgment in

the case of Pulsive Technologies Private Limited's case

(supra), referring to this Judgment, he brought to the notice of

this Court that paragraph No.10 of the judgment, the Apex Court

in this Judgment has held that, when the High Court was dealing

with a petition filed under Section 482 of Cr.P.C, for quashing

the complaint, considered the factual issue as to whether the

complainant had discharged its obligations or not, the High Court

could not have given its final verdict at this stage. It is a matter

of evidence. This is exactly what this Court said in M.M.T.C.

Ltd's case (supra). Though the High Court referred M.M.T.C.

Ltd's case (supra), it failed to note the most vital caution

sounded therein. Whether any money is paid by the accused to

the complainant is a matter of evidence. The accused has ample

opportunity to probabilise his defense. On that count, in the

facts of the case, the complaint cannot be quashed.

36. The learned counsel also relied upon the judgment in

the case of HMT Watches Limited's case (supra), in this

Judgment, the Apex Court held that, if complaint was with

ulterior motive then power under Section 482 can be exercised

to prevent abuse of process. Where complaint filed was genuine

then High Court cannot travel beyond prescribed limits. It was

made clear that sometimes on same set of facts, civil and

criminal proceedings are maintainable. Exercise of powers under

Section 482 of Cr.P.C. based on disputed question of fact,

impermissible, only trial Court can determine disputed questions

of fact. The learned counsel referred to these judgments relied

upon paragraph Nos.10 and 12 and in paragraph No.13, the

Apex Court observed that the High Court exceeded its

jurisdiction by giving its opinion on disputed questions of fact.

37. Having heard the arguments of the respective

learned counsel and also on perusal of the grounds of the

petition, the following points that would arise for the

consideration of this Court are:

(i) Whether this Court can quash the proceedings in coming to the conclusion that the issuance of self cheque in respect of the time barred debt?

(ii) Whether the self cheque issued by the petitioner attracts Section 138 of the Negotiable Instruments Act, 1881?

(iii) Whether both the Courts have committed an error in taking the cognizance and confirming the cognizance by the Revisional Court and it requires an interference of this court exercising the powers under Section 482 of Cr.P.C.?

(iv) What order?

Point No.(i):

38. The first count of argument of the petitioner's

Counsel is that the issuance of self cheque is in respect of the

time barred debt. It is contended that the transaction according

to the complainant was taken place four years prior to the

issuance of alleged self cheque and the same is barred by

limitation.

39. The learned counsel in the synopsis filed by him

relied upon several judgments of different High Courts and also

the Judgment of the Apex Court and mainly argued that there

cannot be any valid acknowledgement of liability within the three

years period of limitation and also contend that Section 25(3) of

the Contract Act and the law laid down by the Division Bench

referring to Section 25(3) of the Contract Act is direct conflict in

the law laid down by the full bench. It is also contended that

when the transaction was taken place four years prior to the

issuance of the cheque and by issuing the self cheque it will not

be a valid acknowledgement of debt.

40. The learned counsel vehemently contends that a

cheque given in discharge of a time barred debt will not

constitute a promise in writing not even an implied promise but

will under Section 30 of the NI Act on dishonour give rise to a

Civil liability and not a Criminal liability under Section 138 of the

NI Act.

41. It is pertinent to note that the learned Counsel

appearing for the respondent relied upon the Judgment of the

Apex Court. The Apex Court in S. Natarajan's case (supra),

categorically held that the very contention that the complaint is

time barred cheque cannot be quashed. Whether debt was time

barred or not can be decided only after evidence is adduced, it

being mixed question of law and fact. This Judgment is aptly

applicable to the case on hand.

42. The very contention of the petitioner is that it is a

time barred transaction; the same has to be decided only after

recording the evidence not at the preliminary stage of taking the

cognizance. It is settled law that whether it is time barred or not

involves disputed facts and the same cannot be determined in a

proceeding under Section 482 of Cr.P.C. since it involves mixed

question of law and fact. Hence, the very contention that the

transaction is time barred cannot be decided while taking the

cognizance. The Apex Court also in M.M.T.C. Ltd.'s case

(supra), has categorically held that complaint need not allege

existing of a subsisting debt or liability against which cheque

issued. Burden of proving non-existence of any debt or liability is

on the accused, to be discharged at the trial. Prior to that

complaint cannot be quashed by High Court under Section 482 of

Cr.P.C. In the case on hand also, the Court has only after

considering the evidence has to decide whether the liability is in

existence or not and the same cannot be decided without

recording the evidence. Hence, Section 482 of Cr.P.C. cannot be

invoked to quash the proceedings.

43. The learned counsel relied upon the Judgment of this

Hon'ble Court rendered in Criminal Appeal No.200057/2016

in the case of The Bidar Urban Co-operative Bank Ltd., v.

Mr. Girish, he would contend that, regarding time barred

transaction is concerned, the said Judgment is delivered on

merits not at the stage of taking cognizance. Hence, the same is

not applicable to the case on hand.

44. The Apex Court also in the case of Pulsive

Technologies Private Limited's case (supra), has categorically

held that the High Court was dealing with a petition filed under

Section 482 of Cr.P.C. for quashing the complaint. Take note of

the factual issue, as to whether the complainant had discharged

its obligations or not, the High Court would not have given its

final verdict at this stage. It is a matter of evidence. The Apex

Court reiterating the principles laid down in the Judgment of

M.M.T.C.'s case (supra), has observed that the High Court failed

to take note of the most vital caution sounded therein. Whether

any money is paid by the accused to the complainant is a matter

of evidence. In this case also it is the case of the complainant

that he lent an amount of Rs.35,00,000/- and in part payment

towards the liability, two self-cheques are issued and the one

was honoured and the present one is the subject matter of the

cheque, which is in dispute and the petitioner also did not

dispute issuance of two cheques whether the same is towards

the liability or not has to be decided only after recording the

evidence.

45. The Apex Court also in the case of HMT Watches

Limited's case (supra), categorically held that Section 482 of

Cr.P.C, can be exercised only to prevent abuse of process and

further observed that sometimes on same set of facts, civil and

criminal proceedings are also maintainable and further held that

the sitting under Section 482 of Cr.P.C, while exercising the

powers disputed question of fact cannot be disabled. Only the

Trial Court can determine the disputed questions of fact. Having

considered the principles laid down in the Judgments referred

supra, though the petitioner's counsel referred several

judgments of different High Courts, it is settled law that whether

the transaction is time barred or not has to be considered only

after the trial not at the preliminary stage or at the time of

taking cognizance. Hence, point No.(i) raised by this Court is

answered as 'negative'.

Point No.(ii):

46. The second count of argument of petitioner's counsel

is that the self cheque issued by the petitioner without the

endorsement does not attract Section 138 of the NI Act. The

learned counsel in support of his argument he relied upon

several judgments, particularly, the Judgment of Gauhati High

Court in the case of Dr. Jiten Barkakoti v. Subrata Patangia

& anr. reported in 2006(1) DCR 278, referring to this

Judgment, the learned counsel would contend that the dishonour

of self-drawn cheque does not tantamount to penal offence.

47. The learned counsel also regarding the question

whether self-cheque issued by the drawer without the

endorsement attracts Section 138 of the NI Act or not

vehemently contend that there is no endorsement in the self-

cheque. Hence, the same does not attract Section 138 of the NI

Act.

48. Per contra, the learned counsel appearing for the

respondent relied upon the Judgment of this Court in

B.Sarvothama's case (supra), and submits that this Court dealt

with the similar issue and discussed in para No.5 and relied upon

Section 9 of the NI Act and so also the Judgment in the case of

Mahesh Goyal v. S.K. Sharma reported in 1997 Cri.L.J. 2868

and Rama Shetty's case. Referring to these judgments would

come to a conclusion that when the word in the self cheque is

"or bearer", normally found on a cheque leaf, were intact or

were scored off. The opinion expressed therein is with reference

to the tenor of Section 138 of the NI Act. It is also observed that

the cheque in question was drawn on self or bearer. It is further

observed that several High Courts have taken a view that a

bearer cheque, if dishonoured, would attract the rigour of

Section 138 of the NI Act. In paragraph No.8 discussed with

regard to 'holder in due course' and in paragraph No.9, it is held

that if word "bearer" has not been deleted and even if it is not

scored off, if the same was in possession and presented before

the bank, but it was dishonoured. It is clear that it was 'holder

in due course'. If the word "bearer" is not scored off, he

becomes the 'holder in due course' and it attracts Section 138 of

the NI Act. The Delhi High Court also in its judgment in Adigear

International's case (supra), reiterates the same and discussed

the same in paragraph No.13 with regard to 'holder in due

course' and so also in paragraphs Nos.23 and 25 discussed in

detail and comes to a conclusion that once the issuance of the

cheques is admitted and as the words "or bearer" have not been

struck off, the complainant is held to be the holder of the said

cheques in due course though it was written as self and thus he

is entitled to receive the cash and dishonouring of the said

cheques, he can very well file the complaint.

49. The Kerala High Court in Sarafudheen's case

(supra), discussing the same in paragraph No.11 and in

paragraph No.12 held that the cheque is styled as a self cheque

and over and above it, the term "or bearer" has not been scored

off. The holder of the cheque could be a 'holder in due course',

who could maintain a complainant under Section 142 of the NI

Act.

50. Having perused the principles laid down in the

Judgment, the very contention that there is no endorsement and

the self cheque does not attract Section 138 of the NI Act,

cannot be accepted at this juncture. The respondent made out

the prima facie case. In view of the principles laid down in the

Judgments referred above, point No.(ii) raised by this Court is

answered as 'affirmative'.

Point No.(iii):

51. The other count of the argument of the petitioner's

counsel is that the Magistrate has committed an error in taking

cognizance and the Revisional Court also committed an error in

taking cognizance. The said contention also cannot be accepted

for the reason that when this Court answered point No.(ii) as

affirmative, it attracts Section 138 of the NI Act. The contention

that it does not attract Section 138 of the NI Act cannot be

accepted. The learned Magistrate having taken note of the

material available on record rightly took the cognizance. The

other contention is that it is a time barred debt cannot be

decided at the time of taking the cognizance. The Revisional

Court also while dismissing the revision discussed in detail in

paragraph No.14 that admittedly the signature of the cheque in

question is not in dispute and also comes to the conclusion that

the complainant is a holder in due course of the said cheque. It

is further observed that the petitioner herein himself admitted in

his reply to the demand notice dated 03.05.2019 that the

petitioner handed over two self cheques each for Rs.5 Lakhs. It

is also clear that the word "bearer" has not been struck off. It is

further observed that the scope of revision is very limited and

the merits of the case cannot be decided in a revision petition.

Further observed that the truth or falsity cannot be entered into

by the Revisional Court, that too, in the initial stage of the case.

I do not find any error committed by the Revisional Court also in

confirming the taking of cognizance. The matter needs a full-

fledged trial to decide the issue involved between the parties and

the grounds which have been urged before this Court by the

petitioner can be raised before the Trial Court during the course

of the trial and the sitting under Section 482 of Cr.P.C, the Court

cannot quash the same. Hence, there is no merit in the petition.

52. In view of the discussions made above, I pass the

following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

cp*