Uttarakhand High Court
M/S Ganesh Trading Company vs State Of Uttarakhand And Another on 31 March, 2023
IN HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No.566 of 2023
M/s Ganesh Trading Company
and Another .....Applicants
Vs.
State of Uttarakhand and Another .....Respondents
With
Criminal Misc. Application No.499 of 2021
M/s Badrivishal Construction
And Another .....Applicants
Vs.
Vikas Thakur .....Respondents
With
Criminal Misc. Application No.502 of 2021
M/s Badrivishal Construction
And Another ....Applicants
Vs.
Vikas Thakur .....Respondents
With
Criminal Misc. Application No.568 of 2023
M/s Badrivishal Construction
And Another ....Applicants
Vs.
State of Uttarakhand and Another ....Respondents
Advocate: Mr. Akshay Pradhan, Advocate and Ms. Sadaf, Advocate for the applicants.
Mr. Sahil Mullick, Advocate for the private respondent in C482 Application Nos.499 of
2021 and C482 No.502 of 2021.
Mr. Tumul K. Nainwal, Brief Holder for the State.
Hon'ble Sharad Kumar Sharma, J.
This is a set of four C482 Applications, in fact, in each of these
C482 Applications for example C482 Application No.566 of 2023, the
challenge has been given only to the summoning order dated 23.09.2021 which
was passed by the Additional Chief Judicial Magistrate IVth in Case No.6268 of
2019, Vikas Thakur vs. M/s Ganesh Trading Co. and Others.
2. In C482 Application No.499 of 2021, the challenge has been given
by the present applicants, yet again, to the summoning order dated 21.11.2019 as
it has been passed by the court of Additional Chief Judicial Magistrate, Vth,
District Dehradun.
3. In C482 Application No.502 of 2021, the challenge given by the
present applicants is only to the summoning order dated 24.01.2020 in Criminal
Complaint Case no.6266 of 2019.
4. In C482 Application No.568 of 2023, the challenge given by the
present applicants is to the summoning order dated 27.05.2022. As a
consequence thereto, in all these C482 Applications, the criminal proceedings
under Section 138 of the Negotiable Instruments Act (for short N.I. Act) have
been put to motion.
5. It has been argued by the learned counsel for the applicants, that no
proceedings under Section 138 of the N.I. Act could have been drawn for the
reason being, that the refusal to honour the cheque by the bank is on the ground
that it was "not presented on the proper zone". What he intends to contend is
that when the cheque has been returned by the bank, since it is not presented in a
proper zone, the appropriate remedy available to the complainant would have
been, to have submitted the cheque for its encashment in a branch of a proper
zone. He submitted that, in that eventuality, where the cheque has been refused
to be honoured since it's non presentation in a proper zone, Section 138 of N.I.
Act, would therefore, not be made out against the present applicants. In relation
thereto, he has submitted that a similar issue came up for consideration before
the Coordinate Bench of Madras High Court a judgment as rendered in 2020
SCC Online Madras 25207 P. Sabeer Ahamed Sayeed vs. S. Charles,
wherein the Coordinate Bench of Madras High Court has observed that where
the cheque is returned due to its "non presentation in a proper zone" without
complying with the said directions issued by the banker for approaching
appropriate branch the proceedings under Section 138 of N.I. Act, would be pre
matured proceedings and hence, it would not be sustainable in the eyes of law.
But in these cases there is a very fine distinction as from that of the issue as
involved in the judgment of Madras High Court because, before the Madras
High Court, as soon as the cheque was dishonoured due to, its non presentation
in its proper zone, the petitioner therein, had put a challenge to the complaint
proceedings itself and thereby on its analysis the Court has held, that the
complaint proceedings initiated by the Judicial Magistrate, was quashed because
it was not a dishonour within the zone of the proceedings, as contemplated under
Section 138 of N.I. Act, and the proceedings were held premature.
6. In all these cases, the petitioner had modulated his relief by putting
a challenge to the summoning order itself only. The proceedings of the
respective complaint cases under Section 138 of the N.I. Act, is not under
challenge before this Court on the ground of it's pre-mature institution or on the
basis of the parameters laid down by the judgment of P. Sabeer Ahamed Sayeed
(Supra).
7. In that eventuality, this Court is of the view, that the principle laid
down by the Madras High Court may not be applicable in the instant case, where
there is no challenge given to the entire proceedings of complaint case due to its
non maintainability or being pre-mature. Once the applicants have put a
challenge to the summoning order, which means that the proceedings of the
criminal complaint case has been put to motion to be tried before the competent
courts, who have issued the summoning order. In that eventuality, where the
proceedings have being put to motion, in which the summoning order had been
exclusively chosen to be put to challenge in the C482 Application without
challenging the criminal complaint proceedings itself, these C482 Applications
would be governed by altogether a different parameters than that of the
judgment of the Madras High Court.
8. Since in all these C482 Applications, the Applicants have been
summoned under Section 138 of the N.I. Act by the impugned orders, which are
under challenge, the appropriate recourse available to the applicants would have
been to approach the Court itself, by seeking his recourse to the remedies
provided in the judgment of Satendra Kumar Antil vs. Central Bureau of
Investigation as reported in (2022) 10 SCC 51, as per the guidelines laid down
therein in relation to the 'A' category of offences and the parameters provided
under para 3(e) of the said judgment.
9. Subject to the aforesaid, the C482 Applications lacks merits and
same are dismissed.
(Sharad Kumar Sharma, J.)
31.03.2023
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