Punjab-Haryana High Court
Simranpreet Singh vs Satnam Singh on 29 April, 2024
Neutral Citation No:=2024:PHHC:060300
CRM-M-21115-2024 --1--
2024:PHHC:060300
126 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-21115-2024
Decided on:-29.04.2024
Simranpreet Singh ....Petitioner..
vs.
Satnam Singh ....Respondent.
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Ashok Sharma Nabhewala, Advocate with
Ms. Gauri Sharma, Advocate,
for the petitioner.
*****
HARKESH MANUJA J. (Oral)
1. By way of present petition, prayer has been made for quashing
of complaint under Section 138 of the Negotiable Instrument Act, 1881 (for
short, NI Act") as well as summoning order dated 08.05.2023 passed by the
Court below, whereby the petitioner has been summoned.
2. On account of dishonour of cheque bearing No.803624 dated
31.01.2023, amounting to Rs.5,50,000/-, issued by the petitioner, the
respondent-complainant filed a complaint under Section 138 of the NI Act.
Relevant portion from the complaint is extracted hereunder:-
"1. ......
2. That, on 17.09.2021, the accused borrowed Rs.21,999.97 paisa
through money gram from son of the complainant who is working
at abroad i.e. Australia. On 02.02.2022 the accused Received Rs.
99,999.79 paisa from son of the complainant through money
gram. On 07.02.2022 the accused received Rs. 1,00,000.23 paisa
from son of the complainant, through money gram. Thereafter, on
demand of the accused son of the complainant got transferred an
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amount of Rs. 50,000/- to the account of the accused from account
of his friend Manpreet Singh Arora of Amritsar on 24.02.2022 On
02.03.2022 the complainant paid Rs. 1,00,000/- to the accused
which he transferred in his account from with SBI Tibri Tehsil &
Distt. Gurdaspur. Again on 04.03. 2022 the complainant paid Rs.
1,00,000/- to the accused which he transferred in account of the
accused from his account from SBI Tibri Tehsil and Distt.
Gurdaspur. On 30.03.2022 the complainant paid Rs. 40,000/- to
the accused which he transferred in account of the accused from
his account from SBI Tibri Tehsil and Distt. Gurdaspur. In this
way the accused has received an amount of Rs. 5,12,000/- from
the complainant and his son on different dates for domestic needs.
3. That, 11.12.2022 the accused came to house of the
complainant at about 7.30 P.M. and in order to make the payment
of above mentioned money and to discharge his legally
enforceable liabilities issued postdated cheque No. 803624 dated
31.01.2023 for Rs. 5,50,000/- (Rs. Five Lakh Fifty thousand only)
and received an amount of Rs. 38,000/- in cash from the
complainant. The above said cheque pertains to State Bank of
India, branch Guru Nanak Nagar, Street No.12 Patiala, issued by
the accused from his account No. 55149585935 in favour of the
complainant in order to make the payment of amount borrowed by
him from the complainant and his son and to discharge his debt
liability. At the time of issuance of cheque you the accused assured
the complainant that the accused assured that he has sufficient
amount in his account to meet the requirements of the cheque. The
cheque is duly signed & issued by the accused. The complainant
accepted the cheque in a good faith.
4. ......
5. ......
6. ......
7. That, thereafter, the complainant again approached the
accused & told him about dishonouring of the cheque and also
requested to either make payment of cheque amount in cash or
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through demand draft. But the accused told the complainant that
due to unavoidable circumstances, the accused could not keep
sufficient money in his account and requested the complainant to
present the cheque after 10 days and by that time he will have
deposited sufficient amount in his account to meet requirements of
the cheque. In the meantime the complainant also came to know
that the accused has transferred an amount of Rs. 70,000/- on
31.12.2022 and Rs. 50,000/- on 31.01.2023 in the account of the
complainant.
8. That, thereafter, the complainant again presented the
cheque in question on 10.03.2023 after deducting the above
mentioned amount of Rs. 1,20,000/- which the accused has
transferred in the account of the complainant. Endorsement to this
effect has also been given on back side of the cheque. But the
cheque issued by the accused was again dishonoured and was
returned to bankers of the complainant with remarks of "Funds
Insufficient vide memo dated 10.03.2023........"
3. In the aforesaid complaint, vide order dated 08.05.2023, the
petitioner was summoned to face trial under Section 138 of the NI Act. By
way of present petition, aforementioned complaint as well as the summoning
order has been assailed while invoking Section 482 Cr.P.C.
4. Learned counsel for the petitioner submits that Section 138 of the
NI Act could only be invoked in case there is any legally enforceable debt,
whereas, in the present case in paragraph 2 of the complaint, the
complainant included the amount which were never borrowed/paid to the
petitioner but were given to his friends. He further submits that the only
borrowed amount was in fact Rs.2,40,000/-, which even stood paid as on the
date of filing the complaint i.e. 28.03.2023, thus, section 138 of the NI Act
could not have been invoked. To support, the details of payments as pointed
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out by learned counsel from the contents of the complaint are as follows:-
Sr. Date Amount
No.
1 31.12.2022 Rs.70,000/-
2 31.01.2023 Rs.50,000/-
3 27.03.2023 Rs.50,000/-
4 28.03.2023 Rs.70,000/=
He further submits that on the basis of a post dated cheque dated
31.01.2023, which was handed over merely for the purpose of security,
Section 138 of the NI Act could not have been invoked, the same having
been misused.
4.1 Learned counsel for the petitioner also relies upon a decision of
Hon'ble Apex Court in case "Dashrathbhai Trikambhai Patel vs. Hitesh
Mahendrabhai Patel and another" 2023(1) SCC 578, to contend that once
part payment already stood paid to the complainant before the filing of the
complaint, in the absence of any endorsement in terms of Section 56 of the
NI Act, the cheque in question could not have been used for the purpose of
invoking Section 138 thereof. Reference has been made to paras No. 21, 25,
29 and 30 of the aforesaid judgment, which are reproduced hereunder:-
"21. The High Court while dismissing the appeal against
acquittal held that the notice issued by the appellant is an omnibus
notice since it does not represent a legally enforceable debt.
Relying on the judgment of this Court in Rahul Builders v. Arihant
Fertilizers & Chemicals9, it was held that the legal notice was not
issued in accordance with proviso (b) to Section 138 since it did
not represent the 'correct amount'. The appellant has contended
that the requirement under Section 138 is to send a notice
demanding the 'cheque amount'. It was contended that the offence
under Section 138 was made out since the appellant in the
statutory notice demanded the payment of rupees twenty lakhs
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which was the 'cheque amount'.
25. Section 138 creates a deeming offence. The provisos
prescribe stipulations to safeguard the drawer of the cheque by
providing them the opportunity of responding to the notice and an
opportunity to repay the cheque amount. The conditions stipulated
in the provisos need to be fulfilled in addition to the ingredients in
the main provision of Section 138. It has already been concluded
above that the offence under Section 138 arises only when a
cheque that represents a part or whole of the legally enforceable
debt at the time of encashment is returned by the bank unpaid.
Since the cheque did not represent the legally enforceable debt at
the time of encashment, the offence under Section 138 is not made
out.
29. Under Section 56 read with Section 15 of the Act, an
endorsement may be made by recording the part-payment of the
debt in the cheque or in a note 12 (2008) 3 KLJ 784 13 ILR (2010)
III Delhi 459 14 [2018 (2) GLH 105] appended to the cheque.
When such an endorsement is made, the instrument could still be
used to negotiate the balance amount. If the endorsed cheque
when presented for encashment of the balance amount is
dishonoured, then the drawee can take recourse to the provisions
of Section 138. Thus, when a part- payment of the debt is made
after the cheque was drawn but before the cheque is encashed,
such payment must be endorsed on the cheque under Section 56 of
the Act. The cheque cannot be presented for encashment without
recording the part payment. If the unendorsed cheque is
dishonoured on presentation, the offence under Section 138 would
not be attracted since the cheque does not represent a legally
enforceable debt at the time of encashment.
30. In view of the discussion above, we summarise our
findings below:
(i) For the commission of an offence under Section
138, the cheque that is dishonoured must represent a legally
enforceable debt on the date of maturity or presentation;
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(ii) If the drawer of the cheque pays a part or whole of
the sum between the period when the cheque is drawn and
when it is encashed upon maturity, then the legally
enforceable debt on the date of maturity would not be the
sum represented on the cheque;
(iii) When a part or whole of the sum represented on
the cheque is paid by the drawer of the cheque, it must be
endorsed on the cheque as prescribed in Section 56 of the
Act. The cheque endorsed with the payment made may be
used to negotiate the balance, if any. If the cheque that is
endorsed is dishonoured when it is sought to be encashed
upon maturity, then the offence under Section 138 will stand
attracted;
(iv) The first respondent has made part-payments after
the debt was incurred and before the cheque was encashed
upon maturity. The sum of rupees twenty lakhs represented
on the cheque was not the 'legally enforceable debt' on the
date of maturity. Thus, the first respondent cannot be deemed
to have committed an offence under Section 138 of the Act
when the cheque was dishonoured for insufficient funds; and
(v) The notice demanding the payment of the 'said
amount of money' has been interpreted by judgments of this
Court to mean the cheque amount.
The conditions stipulated in the provisos to Section 138
need to be fulfilled in addition to the ingredients in the substantive
part of Section
138. Since in this case, the first respondent has not committed an
offence under Section 138, the validity of the form of the notice
need not be decided."
5. I have heard learned counsel for the petitioner and gone through
the paper book as well as law cited. I am unable to find substance in the
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submissions made on behalf of the petitioner.
6. In the present case, the contention raised on behalf of the
petitioner that the amount borrowed by him was only Rs.2,40,000/- and not
Rs.5.50 lakhs, cannot be gone into while exercising powers under Section
482 Cr.P.C., the same being a factual aspect which needs to be gone into
during trial and any adjudication on this account at this stage may amount to
premature determination thereof. In this regard, the respondent-complainant
needs to be afforded opportunity to lead evidence so as to prove his version
given in the complaint. Reference in this regard can be made to a decision
rendered by the Hon'ble Supreme Court, in case of "Rathish Babu
Unnikrishnan vs. State (Govt. of NCT of Delhi)", 2022 (2) Recent
Criminal Report (871). Relevant paragraphs 16 & 17 therefrom are
reproduced hereunder:-
"16. The proposition of law as set out above makes it
abundantly clear that the Court should be slow to grant the relief
of quashing a complaint at a pre-trial stage, when the factual
controversy is in the realm of possibility particularly because of
the legal presumption, as in this matter. What is also of note is
that the factual defence without having to adduce any evidence
need to be of an unimpeachable quality, so as to altogether
disprove the allegations made in the complaint.
17. The consequences of scuttling the criminal
process at a pre-trial stage can be grave and irreparable.
Quashing proceedings at preliminary stages will result in finality
without the parties having had an opportunity to adduce evidence
and the consequence then is that the proper forum i.e., the trial
Court is ousted from weighing the material evidence. If this is
allowed, the accused may be given an un-merited advantage in the
criminal process. Also because of the legal presumption, when the
cheque and the signature are not disputed by the appellant, the
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balance of convenience at this stage is in favour of the
complainant/prosecution, as the accused will have due
opportunity to adduce defence evidence during the trial, to rebut
the presumption."
7. As regards the contention raised on behalf of the petitioner in
terms of Section 56 of the NI Act, the relevant dates relied upon are as
follows:-
Sr. Relevant dates Particulars
No.
1 02.03.2022 Petitioner borrowed Rs.1 lakh
2 04.03.2022 Petitioner borrwed Rs.1 lakh
3 30.03.2022 Petitioner borrowed Rs.40,000
4 31.12.2022 Petitioner repaid Rs.70,000
5. 31.01.2023 Petitioner repaid Rs.50,000/-
6 31.01.2023 Cheque in question
7 20.02.2023 Cheque presented/return memo
8 27.02.2023 Cheque presented/return memo
9. 10.03.2023 Cheque presented/return memo
10 11.03.2023 Demand notice under Section 138 served by the
respondent to the petitioner
11. 27.03.2023 Petitioner repaid Rs.50,000
12. 28.03.2023 Petitioner repaid Rs.70,000
13. 28.03.2023 Complaint filed
14. 08.05.2023 Summoning order
A perusal of the aforestated facts and circumstances show that by
31.01.2023, petitioner paid Rs.1,20,000/- to the respondent-complainant.
The cheque dated 31.01.2023 was presented for encashment for the first time
and was returned unpaid vide memo dated 20.02.2023. It was again
presented and returned unpaid on 27.02.2023 and 10.03.2023. The demand
notice under Section 138 of the NI Act was issued by the respondent-
complainant through his counsel on 11.03.2023, with a clear stipulation that
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a sum of Rs.1,20,000/- stood paid by the petitioner. The relevant extract
from the notice dated 11.03.2023 is extracted hereunder:-
"In the meantime my client also came to know that you
the noticee have transferred an amount of Rs.70,000/- on
31.12.2022 and Rs.50,000/- on 31.01.2023 in the amount of my
client.
That, thereafter, my client again presented the cheque in
question on 10.03.2023 after deducting the above mentioned
amount of Rs.1,20,000/- which the noticee has transferred in the
amount of my client."
Another payment of Rs.1,20,000/- was made by the petitioner
to respondent, much after the issuance of demand notice on 27.03.2023 and
28.03.2023 in the shape of Rs.50,000/- and Rs.70,000/- respectively and the
complaint in hand was filed on 28.03.2023. Though, a clear stipulation was
made in the complaint by the respondent-complainant regarding receipt of
first sum of Rs.1,20,000/- in the shape of Rs.70,000/- and Rs.50,000/-, on
31.12.2022 and 31.01.2023 respectively with further averment that a note to
this effect was made on the backside of the cheque, however, the later
deposit of Rs.1,20,000/- been admittedly made by the petitioner in the
accounts of respondent-complainant on 27.03.2023 and 28.03.2023 which
was much after the cheque was presented for encashment for the last time on
10.03.2023 and also after the issuance of demand notice dated 11.03.2023,
that too, without any prior intimation or notice in this regard to the
respondent-complainant, the non-mentioning about said deposit in the
complaint or even the absence of any endorsement to this effect on the
cheque in question cannot be termed as fatal to the complaint filed at the
instance of respondent-complainant. Any deposit made by the petitioner
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after the demand notice was served upon him and merely a day or two
before the filing of complaint and that too, without any prior notice or
intimation to the respondent-complainant by the petitioner cannot be made a
cause to non-suit the respondent-complainant, at this pre-trial stage while
relying upon Section 56 of the NI Act thus, in these circumstances, the
exposition of law laid down by the Hon'ble Apex Court in Dashrathbhai
Trikambhai Patel's case (supra) cannot be made strictly applicable to the
given facts which are clearly distinguishable as in the said case the amount
received prior to the presentation of cheque was neither mentioned/explained
in the demand notice which was served for cheque amount not even there
was any pleading in the complaint about any endorsement on the cheque in
this regard.
8. Resultantly, in view of the discussion made herein above, the
present petition is dismissed.
29.04.2024 (HARKESH MANUJA)
sonika JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/ No
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