Bombay High Court
Shri Santdas S/O. Sadoromal Chawla vs // on 5 August, 2011
Author: A.P.Bhangale
Bench: A.P.Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION NO.26 OF 2011
Shri Santdas s/o. Sadoromal Chawla,
Aged about 50 yrs., Occ. Business,
r/o. 36, Sadoday Villa, Bairamji
Road, Nagpur - 13. .......... APPLICANT
// VERSUS //
1. Girdhari s/o. Baliramji Bandbuche,
Aged about 68 yrs., Occ. Retired, r/o.
Kirti Nagar, New Nandanvan,
Nagpur.
2. The State of Maharashtra,
P.S.O., P.S.Tahsil, Nagpur,
through A.G.P. H.C., Nagpur. ........... RESPONDENTS
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Shri. A.A.Naik, Adv. for the Applicant.
Shri. Pankaj Navlani, Adv. for Respondent No.1.
Shri.D.B.Yengal, A.P.P. for State/Respondent No.2.
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CORAM : A.P.BHANGALE, J.
DATE : 5.8.2011.
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ORAL JUDGMENT :
1. Heard Shri.A.A.Naik, Adv. for the Applicant, Shri.Pankaj Navlani, Adv. for Respondent No.1 and Shri.D.B.Yengal, A.P.P. for State/Respondent No.2.
2. By this application u/s. 482 of the Code of Criminal Procedure, the applicant has prayed for to quash and set aside the order issuing process against the applicant dated 21st December, 2009 and for dismissal of Summary Criminal Complaint Case No.16576/09 pending on the file of 22nd Judicial Magistrate, First Class, Nagpur. It appears that the applicant is facing Criminal Complaint instituted under Section 138 of the Negotiable Instruments Act, 1881 of the Negotiable Instruments Act, 1881 read with Section 420 of the Indian Penal Code.
3. The facts, briefly stated, are as under :
The respondent (Original complainant) was in need of money and hence, he wanted to sell the immovable property i.e. Block No.1 of House No.595/17, City Survey No.2066/11, Sheet No.32 at Jaripatka, Nagpur. The accused had expressed his wish to purchase the property. The complainant was ready ::: Downloaded on - 09/06/2013 17:36:51 ::: 3 to sell the said property for a consideration of Rs.9,50,000/-
plus the amount of capital gains tax which the complainant would be liable to pay after registration of sale deed. There was an agreement between the complainant and the accused dt.29.6.1996 whereby the accused was to pay consideration within the stipulated period and to get the sale deed registered on payment of full consideration within the stipulated time. The accused had agreed that if he fails to pay the full consideration within the agreed period and to get the sale deed executed, he shall pay an interest @ 18 % p.a. for the delay. The accused failed to pay the consideration as agreed and to get the sale deed executed from the complainant. After about nine years gap, the accused asked the complainant for execution and registration of sale deed in his favour. In the meanwhile, it is alleged that the accused had, without consent of the complainant, got the city survey record altered with ulterior motive. The complainant, therefore, was not ready to execute sale deed in favour of the accused. Thus, the dispute arose between the complainant and the accused.
4. One Mr.N.K.Ghagarkar had mediated in the dispute.
Thus, the accused agreed to pay a sum of Rs.2,76,000/- and insisted for execution of sale deed. The complainant wanted ::: Downloaded on - 09/06/2013 17:36:51 ::: 4 immediate payment, but the accused expressed his inability to pay immediate cash. The accused, however, agreed to give an undertaking and acknowledged his liability to the extent of Rs.2,76,000/- on the Stamp paper and gave two Cheques bearing Cheque No.101442, dt.31.3.2009 of Rs.1,56,000/- and another bearing Cheque No.101443, dt.30.6.2009 of Rs.1,20,000/-. Both the cheques were drawn in favour of Mr.N.K.Ghagarkar. According to the complainant, Mr.Ghagarkar was to return those Cheques when the accused pay cash amount in lieu of those Cheques. Thus, the Cheques, undertaking and acknowledgment of liability were to remain with Mr.N.K.Ghagarkar. Accordingly, the accused had issued Cheques bearing No. 101442, dt.31.3.2009 for a consideration of Rs.1,56,000/- and Cheque No.101443, dt.30.6.2009 for a sum of Rs.1,20,000/- in favour of Mr.N.K.Ghagarkar towards accepted liability of the accused to the complainant. The Cheques were drawn upon Shikshak Sahakari Bank Ltd. by Mr.Ghagarkar on behalf of the complainant and if the cheques are dishonored, the complainant was to exercise legal right against the accused. Thus, after delivery of those two Cheques, the complainant requested the accused to pay the cash amount in lieu of those cheques and to take back the Cheques from Mr. Ghagarkar. But the accused, though promised to make payment in cash, had no bona fide intention ::: Downloaded on - 09/06/2013 17:36:51 ::: 5 to pay the amount. However, with mala fide intention and fradulent motive, he got the sale deed registered in his favour.
It is the case of the complainant that, under instructions from Mr.Ghagarkar, he deposited the two Cheques in the Central Bank of India, Main Branch, S.P.Patel Marg, Nagpur on 29.9.2009; but the Cheque No.101443, dt.30.6.2009 for Rs.1,20,000/- was dishonored and returned unpaid on account of the remark "payment stopped by the drawer/insufficient funds", while in respect of Cheque no.101442, which was dt.,31.3.2009 for a sum of Rs.1,56,000/-, the said Cheque was dishonored for the reason the "Cheque was outdated". Thus, the complainant alleged that the accused did not pay any heed for to clear his liability towards the complainant. The complainant, therefore, issued a legal notice dt.20.10.2009, u/s. 138 of the Negotiable Instruments Act, 1881 which was received by the accused on 26.10.2009. The accused had approached the complainant and instructed him to redeposit the Cheque No.101443, dt. 30.6.2009 for a sum of Rs.1,20,000/- assuring payment, but same was returned with remarks "stop payment/insufficient funds". Thus, the complaint was filed for an offence punishable u/s.138 of the Negotiable Instruments Act r/w. Section 420 of the Indian Penal Code.
::: Downloaded on - 09/06/2013 17:36:51 ::: 65. The learned 22nd Judicial Magistrate, First Class, Nagpur, who perused the complaint, documents and after hearing the learned Advocate for the complainant, was pleased to issue process u/s. 138 of the Negotiable Instruments Act. Issuance of process was challenged by the accused by filing Criminal Revision Application No.523 of 2010 which was rejected by the learned Additional Sessions Judge, Nagpur on 30.11.2010 by judgment and order in the said case.
6. The learned Advocate for the applicant submitted that, in the averments in the complaint, the complainant has stated indicating that the cheques in question were issued in favour of Mr.Ghagarkar by way of security for payment of cash amount assured by the accused. But Mr.Ghagarkar is not the complainant before the Court. According to him, the complainant in this case cannot be considered as a holder in due course since, according to the definition of the term "Holder in due course" u/s. 9 of the Negotiable Instruments Act, "Holder in due course" means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or endorsee thereof, if payable to order, before the amount mentioned in it became payable and without having sufficient cause to believe that any defect existed in the title of the ::: Downloaded on - 09/06/2013 17:36:51 ::: 7 person from whom he derived his title.. Thus, it is necessary for a person to be a holder of due course that he is in possession of the negotiable instrument.
7. The learned Advocate for the respondent/complainant submitted that, in view of the ruling in the case of Ashok Mehta .vs. State of Maharashtra and Others reported in 2005 Cri.L.J. 3321 as against issuance of process the petitioner has an efficacious alternate remedy to prefer revision against it and the Writ Petition against the order of issuing process is not maintainable. While, according to the learned Advocate for the applicant, the term "holder in due course" was considered in the case of U. Ponnappa Moothan Sons, Palghat .vs. Catholic Syrian Bank Ltd.
and Ors. reported in (1991) 1 SCC 113.
8. There can be no quarrel over the definition of the term 'holder in due course' as understood in the Negotiable Instruments Act. However, as observed in the case of U. Ponnappa Moothan Sons itself, the Court has considered the statutory presumption u/s.118(g) of the Act which is required to be rebutted by the defence. The general rule is that the complainant is required to aver and prove a simple contract made for valid and good consideration. The object of issuance ::: Downloaded on - 09/06/2013 17:36:51 ::: 8 of cheque or any negotiable instrument is to ensure facilitation of credit and negotiability. Thus, the statutory presumption u/s.118 r/w. Section 139 is that the Negotiable Instrument was made for consideration and that it was executed for discharge of debt or liability. Once the Negotiable Instrument is proved, the burden in such a case shifts upon the accused to prove to the contrary that the cheque was not issued for consideration or in discharge of any debt or liability. Although the accused may rebut it by defence evidence upon preponderance of probabilities to shift the burden back upon the complainant in the course of trial. Looking to this legal aspect regarding statutory presumptions under the Negotiable Instruments Act which are required to be rebutted by the accused, I think the learned Magistrate was well within his discretion to issue process. The order as to issuance of process though was challenged by filing Criminal Revision Application no.523 of 2010, the said revision application was dismissed as the learned Additional Sessions Judge did not find the order as to issuance of process perverse so as to set it aside. Under these circumstances, since the accused can, by making an appropriate application in the Court of learned trial Magistrate, seek discharge from the case or acquittal as the case may be, I am not inclined to exercise inherent powers u/s. 482 of the Code of Criminal Procedure which are to be exercised ::: Downloaded on - 09/06/2013 17:36:51 ::: 9 sparingly with abundant caution and in the rarest of the rare case. Hence, the application is dismissed.
JUDGE jaiswal ::: Downloaded on - 09/06/2013 17:36:51 :::