Allowed

Sarita Kumari and Anr. v. The State Of Bihar and Ors.

Patna HC16 May 2014CR. MISC./12641/2013

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings against two petitioners. It held one petitioners was not liable as she did not draw the cheque. It further quashed proceedings against the other petitioner because the complaint was filed prematurely, before the 15-day period for payment mandated by Section 138 expired.

What did the court decide?

Impugned order dated 22nd April, 2008 and entire criminal proceedings in Complaint Case No.565 (C) of 2006 quashed.

Sarita Kumari and Anr. Vs The State Of Bihar and Ors. — Cheque Dishonour | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Miscellaneous No.12641 of 2013

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====================================================== 1. Sarita Kumari D/O Shiv Shankar Prasad Singh, 2. Shiv Shankar Prasad Singh, son of Late Jai Ram Singh, Both resident of Village- Avgilla, P.O. Avgilla Chaurasa, Via- Aliganj, Police Station- Chandradeep, District- Jamui. .... .... Petitioners Versus 1. The State of Bihar. 2. Madan Kumar, son of late Jai Ram Singh, resident of Village- Avgilla, P.O. Avgilla Chaurasa, Police Station- Chandradeep, District- Jamui. 3. Nawal Kishore Singh, son of not known, the then Branch Manager, State Bank of India, Aliganj Branch, District- Jamui. .... .... Opposite Parties ====================================================== For the petitioners : Mr. Ajit Kumar Ojha, Advocate For the State : Mr. Narendra Kumar Singh, A.P.P. For the opposite Party No.2: Mr. Rama Kant Sharma, Senior Advocate Mr. Arun Kumar Pandey, Advocate Mr. Lakshmi Kant Sharma, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH

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C. A.V ORDER

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10. 16-05-2014 The present application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) has been filed by the petitioners for quashing the order dated 22^nd April, 2008 passed by Sri R. Narain, Judicial Magistrate, 1^st Class, Jamui in Complaint Case No.565 (C) of

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2006 by which he has taken cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as „the Act‟) and summoned the petitioners to face the trial.

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The opposite party no.2 Madan Kumar filed the aforesaid complaint in the Court of Chief Judicial Magistrate, Jamui on 13^th July, 2006 alleging therein that the petitioner no.1 had taken a loan in various parts on various dates amounting to a total sum of Rs.7,50,000.00 from him for the purpose of installing and operating a petrol pump and on promise that the same would be returned at the earliest. The operation of the petrol pump commenced in the month of April, 2005, but the petitioner no.1 failed to return the amount taken from the complainant. The complainant demanded back the amount in question upon which the petitioner no.1 issued two cheques on 15^th June, 2006 drawn on the State Bank of India, Aliganj Branch. The said cheques were for Rs.3,50,000.00 and Rs.4,00,000.00 respectively. The complainant deposited the said cheques on 15^th June, 2006 and on the same day both cheques were dishonoured by the Bank on the ground of “ insufficient funds ”.

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It has further been alleged that the complainant met the petitioner no.1 on 18^th June, 2006 and informed her that

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the cheques issued by her had been dishonoured by the Bank as such she should take back the cheques and pay him in cash. This caused annoyance to the petitioner no.1. She became furious and refused to oblige the complainant. Thereafter an altercation took place between the complainant and the petitioner no.1 and the petitioner no.1 called her father, whereafter her father also came and both of them told the complainant to leave the house forthwith.

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It has further been alleged that the complainant thereafter sent a legal notice to the petitioner no.1 by registered post on 29^th June, 2006, but the petitioner no.1 failed to make the payment of the said amount of money to the complainant and thus a complaint under Section 138 of the Act was filed against the petitioners on 13^th July, 2006.

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Learned counsel for the petitioners has submitted that complainant of the case is none else, but the uncle of petitioner no.1 and brother of petitioner no.2. Apart from raising several disputed question of fact, the petitioners have raised two important legal issues which require consideration by this Court.

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The first issue raised by the petitioners is that petitioner no.2 has not drawn the cheques in question. According to him, a plain reading of Section 138 of the Act would show that

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the drawer of the cheque can only be held to be liable for punishment for dishonour of the cheque drawn on an account maintained by him/her in the Bank, if such cheque is drawn for legally enforceable debt or liability. He has submitted that unless it is shown that the person could be treated as the drawer of the cheque in the eye of law, no criminal action can be instituted against him.

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The second issue raised by the petitioners is that

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the offence would be completed when the drawer of the cheque fails to make the payment of the amount of money to the payee or the holder in due course before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138 (c) of the Act.

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So far the first question is concerned, Mr. Ramakant Sharma, learned counsel for the opposite party no.2 has submitted that the issue is being raised for the first time before this Court when the trial is at the verge of completion. He has submitted that all the witnesses of the case have already been examined in the Court below and, therefore, the issue should be left to be decided by the trial Court. He has submitted that who issued the cheques would be a question of fact and the same should not be decided by this Court in a proceeding under Section

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482 of the Code.

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Learned counsel appearing for the petitioners has submitted that there is absolutely no dispute in respect of the fact that the cheques in question were drawn by the petitioner no.1 from an account maintained by her with the State Bank of India, Aliganj Branch and, therefore, the basic ingredient to constitute an offence under Section 138 of the Act was missing as against the petitioner no.2. It has been submitted that filing of the complaint under Section 138 of the Act against the petitioner no.2 is an abuse of the process of the Court.

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Learned counsel for the petitioners while pressing the second issue as mentioned hereinabove has contended that the cheques in question were dishonoured on 15^th June, 2006 and a notice to that effect was sent to the petitioner no.1 on 29^th June, 2006 giving a time of 10 days for settlement of the amount and on 13^th July, 2006, the case was filed before the concerned court. Learned counsel has contended that in terms of Section 138 of the Act, the complaint was premature as the complaint was filed within 14 days from the date of issuance of the notice. He has submitted that the filing of complaint within 14 days from the date of issuance of notice was clearly against the mandate of Section 138 of the Act. Hence, the impugned order taking

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cognizance of the offence passed by the learned Magistrate is bad

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in law.

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On the contrary, Mr. Ramakant Sharma, learned counsel for the opposite party no.2 has contended that if a proper calculation is made, the complaint was filed on 15^th day of the issuance of notice and hence the same can be construed to be due compliance of the provision prescribed in terms of Section 138(c) of the Act. He has further contended that the order taking cognizance was passed on 22^nd April, 2008, i.e. far beyond the time given under the Act for making payment of the amount of money to the payee and admittedly the petitioners failed to make payment of the amount and, thus, also the order taking cognizance cannot be held to be bad.

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I have heard the parties at length and perused the

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record.

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Section 138 of the Act reads as under:-

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“138. Dishonour of cheque for insufficiency, etc., of funds in the account.--- Where any cheque 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, is 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 arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have

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committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

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Provided that nothing contained in this section shall apply unless----

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(a)the cheque has been 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;

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(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 thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

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(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.

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Explanation.- For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.”

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In order to constitute an offence under Section

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138 of the Act, the Hon‟ble Supreme Court in the case of Jugesh Sehgal Versus Shamsher Singh Gogi, reported in (2009) 14 SCC 683, noted the following ingredients in paragraph 13 which are required to be fulfilled:-

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“(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;

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(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or

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other liability;

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(iii) that cheque has been 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;

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(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;

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(v) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

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(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.

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Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.”

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It is only when all the aforementioned

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ingredients are satisfied; the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act. In the present case, it is an admitted position from the complaint itself that it was the petitioner no.1 who had issued the two cheques in question on 15^th June, 2006 drawn on the State Bank of India, Aliganj Branch.

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16. In Aparna A. Shah Versus Sheth Developers

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Private Limited and another, reported in (2013) 8 S.C.C. 71, the Hon‟ble Supreme Court had occasion to examine this issue. In that case, the respondent company had paid sum of Rs.25 crores to the appellant-accused and her husband as they demanded it for inspection of their title to lands regarding joint development of their lands. Ultimately, the proposed deal did not materialise and even after the further talks the deal failed. The respondent Company wanted to move other projects. It did not have sufficient funds as bank security. Therefore, it demanded for return of Rs.25 crores. The husband of the appellant- accused issued a cheque of Rs.25 crores in favour of the respondent Company. The said cheque was dishonoured for “insufficient balance ”. After completing formalities, the complaint was filed before the jurisdictional Magistrate against the appellant-accused and her husband. After receipt of summons, they objected to exhibiting certain documents. The trial Court rejected their application raising objections. The appellant-accused and her husband questioned issuance of the process to them and rejection of their objections. They also prayed for quashing of the proceedings by invoking Section 482 of the Code. The High Court of Bombay directed the trial Court to consider the objections raised after

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hearing both sides but refused to quash the proceedings.

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The matter went in appeal before the Hon‟ble

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Supreme Court. After hearing the parties, while allowing the

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appeal the Hon‟ble Supreme Court in para 27 held as under:-

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“In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains the name of the appellant and her husband, the fact remains that her husband alone had put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-inchief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque”.

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In view of the law laid down by the Hon‟ble

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Apex Court in the case of Aparna A. Shah Vs. Sheth Developers Private Limited (supra) as well as on the facts and in the circumstances of the case, allowing the prosecution to continue as against the petitioner no.2 would be a gross abuse of the process of Court.

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After reaching to the aforesaid conclusion in respect of the petitioner no.2, this Court would like to examine the second issue raised by the petitioners.

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Proviso (c) to Section 138 of the Act makes it

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clear that a complaint could be filed only if the drawer of such cheque fails to make the payment of the amount of money to the payee or to the holder in due course of the cheque, within fifteen days of the receipt of the notice.

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A plain reading of Section 138 of the Act makes it abundantly clear that the notice is not only required to be dispatched, but the same is also required to be communicated. The communication to the drawer of the cheques about the fact of dishonouring of the cheques and calling upon her to pay the amount within 15 days is imperative in character.

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In K. Bhaskaran Versus Sankaran Viadhyan Balan and another, reported in(1999) 7 S.C.C. 510, the Hon‟ble Apex Court has highlighted the importance of service of notice in paragraphs 19 to 21 which reads as under:-

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“19. In Black’s Law Dictionary “giving of notice” is distinguished from “receiving of the notice” (vide p. 621): “A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it.” A person “receives” a notice when it is duly delivered to him or at the place of his business.

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20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the

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legal consequences of Section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure.

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21. In Maxwell’s Interpretation of Statutes, the learned author has emphasised that “provisions relating to giving of notice often receive liberal interpretation” (vide p. 99 of the 12th Edn.). The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to Section 138 of the Act show that the payee has the statutory obligation to “make a demand” by giving notice. The thrust in the clause is on the need to “make a demand”. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is despatched his part is over and the next depends on what the sendee does .”

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It has been held by the Hon‟ble Supreme Court

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in Sarav Investment & Financial Consultancy Private Limited and another Versus Llyods Register of Shipping Indian Office Staff Provident Fund and another, reported in (2007) 14 SCC 753, that service of notice is a part of cause of action for lodging the complaint. The Hon‟ble Supreme Court in para 16 has held as under:

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“16. Section 138 of the Act contains a penal provision. It is a special statute. It creates a vicarious liability. Even the burden of proof to some extent is on the accused. Having regard to

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the purport of the said provision as also in view of the fact that it provides for a severe penalty, the provision warrants a strict construction. Proviso appended to Section 138 contains a non obstante clause. It provides that nothing contained in the main provision shall apply unless the requirements prescribed therein are complied with. Service of notice is one of the statutory requirements for initiation of a criminal proceeding. Such notice is required to be given within 30 days of the receipt of the information by the complainant from the bank regarding the cheque as unpaid. Clause (c) provides that the holder of the cheque must be given an opportunity to pay the amount in question within 15 days of the receipt of the said notice. Complaint petition, thus, can be filed for commission of an offence by a drawee of a cheque only 15 days after service of the notice. What are the requirements of service of a notice is no longer res integra in view of the recent decision of this Court in C.C. Alavi Haji v. Palapetty Muhammed, reported in (2007) 14 SCC 750.”

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Section 142 of the Act governs taking cognizance of the offence and starts with non-obstante clause. It provides that no Court shall take cognizance of the offence punishable under Section 138 of the Act except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; and such complaint is made within one month of the date on which the cause of action arises under clause

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On a plain reading of Sections 138 and 142 of

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the Act it would be clear that a complaint under Section 138 of the Act can be filed only after the cause of action to do so accrues to the complainant in terms of clause (c) of proviso to Section 138 of the Act which, as noted above, happens only after the drawer of the cheques in question fails to make the payment of the cheque amount to the payee or the holder of the cheque within 15 days of the receipt of the notice required to be sent in terms of clause (b) of the proviso to Section 138 of the Act.

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From the admitted facts of the case, it would be clear that the complaint was filed on the 15^th day of issuance of notice. There is no averment in the complaint about the date on which the notice was served upon the petitioner no.1. Admittedly, the notice was issued by the opposite party no.2 on 29^th June, 2006. The date on which it was served upon the petitioner no.1 is not known. Even if, it is presumed that the notice was served upon the petitioner no.1 on the date of its issuance, the petitioner no.1 could have paid the demanded amount within a period of 15 days thereafter, i.e. by 14^th July, 2006 in order to purge the commission of an offence under Section 138 of the Act. It was only on failure to make the payment of the demanded amount by 14^th July, 2006, the commission of offence under Section 138 of the Act would have been completed. In other words, the cause of action for filing

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a complaint against the petitioner no.1 would have arisen at the earliest on 15^th July, 2006 and not before. Once I reach to this conclusion, I have no hesitation in my mind that the filing of complaint on 13^th July, 2006 by the opposite party no.2 against the petitioners was even before the accrual of the cause of action.

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The issue relating to commission of offence under Section 138 of the Act was also gone into at length by Hon‟ble Supreme Court in the case of Nishant Agrawal Versus Kailash Sharma, reported in (2013) 10 SCC 72 . In the said judgment the Apex Court in paragraph 22 held as under:-

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“ 22 …………………….. In this way, this Court concluded that issuance of notice would not by itself give rise to a cause of action but communication of the notice would. In other words, the Court clarified that only on the service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, the commission of an offence completes.

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Thus, both in view of the facts noted above and

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the law laid down by the Hon‟ble Apex Court, there is no difficulty in holding that the date on which the complaint was filed in the Court, the offence under Section 138 of the Act had not been committed by the petitioner no.1 and that there is no cause of action as against the petitioner no.2.

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From the discussions made hereinabove, it is

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apparent that the complaint was filed in anticipation of accrual of the cause of action under clause (c) of proviso to section 138 of the Act. It was certainly a premature complaint. Indisputably, the complaint was filed before the expiry of the stipulated period of 15 days after service of notice in terms of proviso (c) to Section 138 of the Act. A complaint filed before the expiry of the stipulated period of 15 days was not a valid complaint and, thus, the Magistrate concerned could not have taken cognizance of the offence under Section 142 of the Act and proceeded ahead in the matter.

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Once I reach to the aforesaid to the aforesaid conclusion, even if I ignore the defence of the petitioners and accept the allegations made in the complaint to be true at its face value, the same would not constitute any offence against the petitioners on the date of filing of the complaint.

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In the background of the facts discussed hereinabove, I would like to consider the submission advanced by Mr. Rama Kant Sharma, learned counsel for the opposite party no.2, in respect of maintainability of the petition under the inherent jurisdiction of this Court as provided under Section 482 of the Code at a belated stage of trial.

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It is true that the inherent powers under Section

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482 of the Code do not confer an arbitrary jurisdiction on this Court. The powers have to be exercised sparingly, with circumspection and in the rarest of the rare cases, where the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.

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The purport of the expression “rarest of rare cases” has been explained by three-Judge Bench of the Hon‟ble Supreme Court in Som Mittal v. Govt. of Karnataka, reported in (2008) 3 SCC 574. Para 9 of the said judgment reads as under:-

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"When the words 'rarest of rare cases' are used after the words 'sparingly and with circumspection' while describing the scope of Section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482 to quash proceedings should not be used Mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C. to quash the FIR or criminal proceedings should be used sparingly and with circumspection."

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In State of Haryana V. Bhajan Lal, reported in

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1992 Supp (1) SCC 335, the Court by way of illustration formulated as many as seven categories of cases, wherein the extraordinary power under the aforesaid provisions could be exercised by the High Court under Article 226 of the Constitution and Section 482 of the Code to prevent an abuse of the process of the Court.

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It is well settled that a criminal complaint lodged before the Court under the provisions of Chapter XV of the Code has to be brought to its logical conclusion in accordance with the procedure prescribed. However, inherent power has been conferred to the High Court under Section 482 of the Court to interdict such a proceeding in the event the institution/continuance of the criminal proceeding amounts to an abuse of the process of Court or for the ends of justice. The saving of inherent powers in criminal matters is designed to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.

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The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial has been considered by the Hon‟ble Supreme Court in the case of Satish Mehra Versus State (NCT of Delhi) and another, reported in (2012) 13 SCC 614. In the said case, the Hon‟ble Supreme Court

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has held that a prosecution which is bound to become lame or a sham ought to be interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. In para 21 of the aforesaid judgment, the Hon‟ble Supreme Court held as under:-

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“ A criminal trial cannot be allowed to assume the character of a fishing and roving enquiry. It would not be permissible in law to permit a prosecution to linger, limp and continue on the basis of a mere hope and expectation that in the trial some material may be found to implicate the accused. Such a course of action is not contemplated in the system of criminal jurisprudence that has been evolved by the courts over the years. A criminal trial, on the contrary, is contemplated only on definite allegations, prima facie, establishing the commission of an offence by the accused which fact has to be proved by leading unimpeachable and acceptable evidence in the course of the trial against the accused. We are, therefore, of the view that the criminal proceeding in the present form and on the allegations levelled is clearly not maintainable against either of the appellant-accused G. K. Bhat and R. K. Arora.”

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Keeping in mind the above legal position,

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allowing the prosecution to continue against the petitioners in the aforesaid case would be a gross abuse of the process of Court. Accordingly, the impugned order dated 22^nd April, 2008 passed by Sri R. Narain, Judicial Magistrate, 1^st Class, Jamui in Complaint Case No.565 (C) of 2006 and the entire criminal proceedings in connection with the aforesaid case are hereby quashed.

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AFR
Sunil/-

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The application stands allowed.

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(Ashwani Kumar Singh, J)

Sarita Kumari and Anr. v. The State Of Bihar and Ors.

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Sarita Kumari and Anr. v. The State Of Bihar and Ors.

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