Madhya Pradesh High Court
Yogendra Kumar Gupta vs Ram Prakash Agrawal on 14 February, 2007
Equivalent citations: I(2008)BC57, 2007CRILJ2500, AIR 2007 (NOC) 2023 (MPG), 2007 CRI. L. J. 2500, 2007 (5) ABR (NOC) 839 (MPG), 2007 (5) AKAR (NOC) 805 (MPG), (2007) 2 MPHT 184, (2007) 4 ALLCRILR 39, (2008) 1 BANKCAS 57, (2007) 2 NIJ 344, (2007) 54 ALLINDCAS 798 (MPG), (2007) 2 BANKJ 812, (2007) 2 CRIMES 467, (2007) 2 MPLJ 510, (2008) 2 RECCRIR 732
Author: B.M. Gupta
Bench: B.M. Gupta
ORDER B.M. Gupta, J.
1. Feeling aggrieved with an order Dt. 24-11 -2006 passed by Special Judicial Magistrate, Gwalior in Criminal Case No. 978/05, this petition under Section 482 of Cr. P.C. has been filed for setting aside this order. Vide the impugned order, the learned Magistrate has dismissed an application under Section 245(2) of Cr. P.C. filed on behalf of the accused, who is the petitioner in this petition.
2. The facts in brief, are that, respondent filed one complaint against the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as the Act) on the allegation that Cheque No. 061028 issued by the petitioner, was dishonoured by the bank and returned without encashment with a memorandum Dt. 9th July, 2005. Thereafter, despite issuance of notice when the amount was not paid by the petitioner, complaint was filed.
3. During trial, the aforementioned application was filed for discharging the petitioner on the ground that the memorandum of bank is - 'present again' and on this note of the bank, the offence under Section 138 of the Act, is not made out. This application has been dismissed by the learned Magistrate on the ground, that as the cheque was returned unpaid and despite issuance of notice, the payment was not made.
4. It is not disputed that the cheque was returned by the bank with a note of present again.' It is also not dispute that despite notice, payment of cheque amount was not made by the petitioner. In view of these admitted facts, the contention of Shri Sharma, the learned Counsel for petitioner is that the offence under Section 138 of the Act is made out if the cheque is returned only with a note (1) either because of the amount of money standing to the credit of the account is insufficient or (2) that it exceeds the amount arranged to be paid from that account by an agreement made with the bank. He further submits that none of these two clauses have been mentioned in the memorandum of the bank returning the cheque unpaid, hence the offence is not made out. ;
5. Shri M. B. Mangal, the learned Counsel for the respondents submits that it is not the contention of the petitioner that there was sufficient amount available in his account at the relevant time and till date amount remain unpaid. Hence the offence is made out.
6. Very identical dispute arose in the case of Goaplast Pvt. Ltd. v. Shri Chico Ursula D'Souza 2003 (2) MPWN 30 (SC) : 2003 Cri LJ 1723. which reached into the Apex Court through a Criminal Appeal No. 315 of 2003. While, delivering a judgment in this case, the Apex Court has narrated the facts of the case in opening paragraph as under:
...The facts are in a very narrow compass. Respondent No. 1 addressed a letter to the appellant on 20th July, 1992 enclosing therewith ten post-dated cheques each for an amount of Rs. 40,000/- by way of refund of amount due from him to the appellant. The two cheques subject-matter of the present appeal were dated 10-12-1994 and 10-4-1995. On 12th February, 1993 respondent No. 1 again wrote to the appellant denying his liability to pay the amount under the aforesaid cheques on the ground that they were issued under a mistaken belief of liability and asked the appellant to treat the cheques as invalid. Respondent No. 1 also wrote to the drawee Bank on 15th March. 1993 to stop payment of the aforesaid postdated cheques issued by him. On 10th May, 1995, the appellant presented the two cheques dated 10-12-1994 and 10-4-1995 for payment but the said cheques were returned unpaid with the endorsement "present again" on 12-5-1995. On 24th May, 1995 the appellant issued notice under Section 138B of the Act demanding payment of the amount of Rs. 80,000/- i.e. the total amount of the two cheques. On failure of the respondent No. 1 to make the payment in pursuance to the notice, the appellant filed a complaint under Section 138 of the Act on 7th July, 1995....
On these facts, the Courts below in that case concluded that the provisions of Section 138 do not apply. Before concluding the dispute, the Court in second paragraph has mentioned the object of Chapter XVII of the Act as.
...it is necessary to refer to the object behind introduction of Chapter XVII containing Sections 138 to 142. This chapter was introduced in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (Acts 66 of 1998) with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions and in order to promote efficacy of banking operations....
and after considering the various pronouncement of the Court from various judgments, has concluded in the following words:
We are unable to agree with the reasoning adopted by the Courts below. The impugned judgments of the High Court and the Judicial Magistrate, Ist Class, Panaji, Goa are set aside. We hold that Section 138 of the Negotiable Instruments Act will be attracted in the facts of the case. However, whether a case for punishment under that provision is made out, will depend on outcome of the trial....
This judgment of the Apex Court is a complete answer of the dispute existed in the present case.
7. That apart, in the following judgments also, the concerning Courts have concluded that reasons for dishonour of cheque are wholly irrelevant and cannot be taken into account. Once the cheque is issued by the drawer, a presumption under Section 139 must follow and despite presentation of the cheque in the bank and thereafter issuing a notice of demand, the amount remained unpaid, the drawer of the cheque can be held responsible under Section 138 of the Act. The judgments are,
1. Modi Cements Ltd. v. Shri Kuchil Kumar Nandi .
2. Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar and Anr. 1993 Cri LJ 680 (Bom).
3. Devendra Singh v. Varinder Singh 1998 II MPWN 60.
8. In view of the law laid down in the aforementioned judgments, petition being devoid of merits, deserves to be dismissed. Hence, it is dismissed.