Karnataka High Court
Dr Shreeyansh Rayappa Nandeshwar vs Dr Prakash Ponde on 28 January, 2021
Equivalent citations: AIRONLINE 2021 KAR 937, 2021 (3) AKR 374
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 28TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION No.3991/2020
BETWEEN:
Dr. SHREEYANSH RAYAPPA NANDESHWAR,
S/O RAYAPPA LAXMANA RAO NANDESHWAR,
AGED ABOUT 59 YEARS,
R/O NO.765/2D, 'RATNATRAY',
BHAGYA NAGAR, 2ND CROSS,
BELGAUM - 591 006. ... PETITIONER
(BY SRI. VARDHAMAN V. GUNJAL, ADVOCATE)
AND:
Dr. PRAKASH PONDE,
S/O. SUBRAO PHONDE,
AGED ABOUT 56 YEARS,
AGRICULTURIST,
R/O. PLOT NO.1, SAMARTH COLONY,
HINDALGA ROAD,
BELGAVI-591 108. ... RESPONDENT
(BY SRI. SANDESH J. CHOUTA, ADVOCATE FOR
SRI. CHANDRASHEKAR R.P, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE
2ND ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALURU PASSED IN CRL.R.P.NO.177/2019 DATED
04.03.2020 ORDER UPHOLDING THAT THE SUMMONS ISSUED
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BY 2ND ADDITIONAL CIVIL JUDGE AND JMFC, CHIKKAMAGALURU
IN PCR NO.252/2019 AND C.C.NO.690/2019 DATED 08.05.2019.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.01.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the order dated 04.03.2020 passed in Crl.R.P.No.177/2019 by the II Additional District and Sessions Judge at Chikkamagaluru, upholding the issuance of summons issued by the II Additional Civil Judge & JMFC., Chikkamagaluru, in PCR No.252/2019 subsequently numbered as C.C.No.690/2019 vide order dated 08.05.2019.
2. The factual matrix of the case is that, the respondent herein had filed a private complaint under Section 200 of Cr.P.C, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, ('NI Act' for short), contending that the petitioner herein had borrowed a sum of Rs.35,00,000/- from the respondent herein as a hand loan. When demanded the repayment of the said amount, the petitioner herein has issued a self cheque dated 22.12.2018 for a sum of Rs.5,00,000/- 3 towards part payment and assured that the same will be honoured upon presentation. But the same was returned with an endorsement as 'account closed' and hence, the proceedings under Section 138 of the NI Act.
3. The learned Magistrate after perusing the materials on record and after recording of sworn statement of the complainant took the cognizance of offence punishable under Section 138 of the NI Act. Being aggrieved by the said order, he had preferred Crl.R.P.No.177/2019 and the Revisional Court also confirmed the order of the Magistrate in coming to the conclusion that the grounds, which have been urged, cannot be adjudicated conclusively at the stage of issuance of process and the scope of revision is also limited. The allegations made in the complaint on the face of the record have to be accepted and falsity cannot be entertained by the Revisional Court. Hence, the present petition is filed.
4. The grounds urged in this petition are that, undisputedly the alleged date of advancement of loan was barred by limitation. Without any material, a self cheque has 4 been treated as an acknowledgement when it is not even pleaded by the complainant. Thereupon no element of violation of Section 138 of the NI Act, taking cognizance and issuing summons is per-se illegal and a manifest error is apparent on the face of the record. It is also contended that no detailed order is required to pass at the time of taking cognizance but the short cut adopted by the Magistrate is also not acceptable and he did not apply his mind on the material available on record.
5. The learned Magistrate before directing to registering the complaint and issue summons, has not addressed himself on the legal question whether there is criminal liability on the part of the petitioner to attract the provisions of Section 138 of the NI Act. It is also contended that the cheque issued is a self-cheque is not in dispute and there is no endorsement and with no such endorsement, the same cannot be holder-in-due course and he was having the said self cheque written it more than two months back. There are very strong assertions about the claim of the respondent. It is contended that a cardinal rule of evidence, not one of technicality but of substance, which is dangerous to 5 depart from that where written documents exist, they shall be produced as being the best evidence of their own contents. The Trial Court has committed a grave error by misleading the complainant. The very approach of both the Magistrate as well as the Revisional Court is an error apparent on the face of the record and failed to consider the grounds urged before the Magistrate and Revisional Court that the claim is barred by limitation. The cheque is also kept for a period of two months and there is no endorsement and in the absence of endorsement when the cheque was presented, it does not attract Section 138 of the NI Act. It is also contended that the respondent is not a holder-in-due course of the cheque. The learned counsel reiterating the grounds urged in this petition vehemently contends that for quashing of this petition he relying on four grounds.
6. The first ground urged by the learned counsel for the petitioner is that the complaint averments disclose that the alleged loan transaction is more than four years and the same is barred by limitation. The issuance of self-cheque also does not 6 constitute an offence and also the same is not an acknowledgement.
7. The other contention of the learned counsel for the petitioner is that the cheque though it is a self-cheque, the respondent was holding the same for a period of two months and it creates the suspicion in the mind of the Court. The third count of argument is that without an endorsement, the same was presented and not in dispute that it is a self-cheque. When such being the case, it does not attract Section 138 of the NI Act.
8. The learned counsel for the petitioner would submit that the respondent is not a holder-in-due course and hence, it requires an interference of this Court exercising the powers under Section 482 of Cr.P.C.
9. Learned counsel for the petitioner in support of his arguments, he relied upon several Judgments and also filed the written submissions in addition to the oral submissions. The learned counsel in the written submissions also extracted several Judgments and mainly pointed out that the question arises 7 before the Court is whether the cheque issued for discharge of time barred debt would still form within the purview of Section 138 of the NI Act. The question raised by the petitioner's Counsel is that whether the bearer cheque issued requires to be endorsed by the drawer of cheque payable to self bearer not struck requires the endorsement to whom payable. The learned counsel also would contend that whether the Ex-Magistrate ought to look into both complaint and acknowledging documents together with the statements and scrutinized to arrive at a conclusion that the offence is made out.
10. The fourth ground raised by the learned Counsel is that whether the issuance of summons should examine as to whether the offence is made out under Sections 138 and 139 of the NI Act constituting an offence. The learned counsel raising all these questions extracted the meaning under Section 138 of the NI Act, i.e., "debt or other liability".
11. Learned counsel for the petitioner in support of his arguments, he relied upon the judgment in the case of Ramakrishnan v. Gangadharan Nair & another reported in 8 2007 Cri.L.J. 1486, referring to this Judgment, he brought to the notice of this Court that Section 18 of the Limitation act, whether issuance of cheque amount to an acknowledgement under Section 18 of the Limitation Act, but it is based on Section 25(3) of the Contract Act and Section 46 of the NI Act.
12. Learned counsel also relied upon the judgment of the Andhra Pradesh High Court Judgment in the case of Girdhari Lal Rathi v. P.T.V. Ramanujachari reported in 1997(2) Crimes 658, referring to this Judgment, the counsel would contend that there was no valid acknowledgement of liability within the three year period of limitation referring to Section 25(3) of the Contract Act.
13. Further, learned counsel relied upon the Judgment of this High Court in the case of H. Narasimha Rao v. Venkataram R reported in 2007 Cri.L.J. 583, referring to this Judgment he would contend that when the debt has become barred by limitation the accused was acquitted. 9
14. Learned counsel also relied upon the Bombay High Court Judgment in the case of Narendra V. Kanekar vs. Bardez Taluka Co-op Housing Mortgage Society reported in 2006 Cri.L.J. 3111, he would contend that the cheque given for the discharge of a time barred debt itself becomes a contract under Section 25(3) and the question arises whether the same can lead to a conviction under Section 138 of the NI Act.
15. The learned counsel also relied upon the Kerala High Court Judgment in the case of Ramakrishnan v.
Parthasardhy, reported in 2003(2) Ker.L.T. 613, he would contend that the question arises in this case is whether the time barred debt within Section 25(3) of the Contract Act and further observed that it is the failure to distinquish Civil Liability from Criminal Liability.
16. The learned counsel also relied upon the Kerala High Court Judgment in the case of Chacko Varkey v. Thommen Thomas reported in AIR 1958 KER 31, referring to this Judgment he would contend that, after the period of limitation 10 expires, nothing short of an express promise will provide a fresh period of limitation; an implied promise is not sufficient.
17. The learned counsel referring to these judgments would contend that the cheque given for discharge of time barred debt will not constitute a promise in writing not even an implied promise but under Section 30 of the NI Act on dishonour give rise to Civil liability and not a Criminal liability under Section 138 of the NI Act.
18. The learned counsel also relied upon the judgment of the Apex Court in the case of A.V. Murthy v. B.S. Nagabasvanna reported in (2002) 2 SCC 642, wherein, the Supreme Court has observed that with regard to about four years back loan was advanced, the Sessions Court quashed the complaint relying on the explanation to Section 138 of the NI Act. The Apex Court after considering the material on record remanded the matter for other reason. It is also contended that the Karnataka High Court concurred but eventually the Supreme Court reversed the Judgment of the High Court and restored the order of Trial Court. It is observed that it may still be legally 11 recoverable if there is an acknowledgement in law or by way of a written promise within Section 25(3) of the Contract Act.
19. The Apex Court in its Judgment in Sasseriyil Joseph's case observed in A.V. Murthy's case (supra), held that, only mean that the liability or debt should not arise out of a transaction, which is illegal. It should be not a cheque to meet a liability under a wagering contract which shall not be legally enforceable. The Supreme Court was giving only an illustration to bring home the point that the quashing was erroneous limitation unlike an admitted wagering contract being a mixed question of law and fact.
20. The learned counsel referring to the above judgments would contend that specific question that limitation is within the explanation to Section 138 of the NI Act. Thus, there can be no question that the Division Bench Judgment of the Kerala High Court did not lay down correct law when it held that a cheque for a time barred debt on being dishonoured can embroil a drawer in a criminal prosecution.
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21. The learned counsel referring to the above judgments would contend that the cheque issued for discharge of time barred debt not comes within the purview of Section 138 of the NI Act.
22. The learned counsel with regard to question No.2 is concerned, whether bearer cheque requires to be endorsed by the drawer of cheque payable to self requires an endorsement with the concerned mainly relies upon the meaning of endorsement, particularly, in Negotiable Instruments and also holder in due course. The learned counsel referring the same would contend that without an endorsement cannot be a legal tender enabling him to present the same.
23. The learned counsel also relied upon the order passed by this Court in the case of Nabiraja v. State Bank of India in Criminal Petition No.6816/2019 dated 29.08.2019, he would submit that in the said case there was an endorsement. But in the case on hand, there was no such endorsement.
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24. The learned counsel with regard to the point Nos.3 and 4 raised by him submits that, whether the Magistrate ought to look into both the complaint and accompanying documents together to scrutinize to arrive at a conclusion that offences made out; whether it attracts Section 138 of the NI Act constituting an offence would contend that the Judgments referred by the learned counsel appearing for the respondent in the case of HMT Watches Limited v. M.A.Abida and another reported in (2015) 11 Supreme Court Cases 776, is with regard to High Court had intervened in the matter of disputed facts i.e., cash and carry. In the case of S. Natarajan v. Sama Dharman reported in AIRONLINE 2014 SC 115, there was an admission in the books of accounts and the loan was acknowledged and admitted. In the case of M.M.T.C. Ltd. and another v. Medchl Chemicals and Pharma (P) Limited and another reported in (2002) 1 Supreme Court Cases 234, it was a case where the issue was whether or not the cheques were issued as security. In the case of Pulsive Technologies Private Limited v. State of Gujarat and others reported in (2014) 13 Supreme Court Cases 18, the issue was the 14 accused would be liable when stop payment instructions were issued on the allegation that complainant had failed to discharge its obligations. In the case of Adigear International v. State reported in 2013 SCC OnLine Del 4938, the issue was that pleading that in partial discharge of the liability, there was no issue of limitation.
25. The learned counsel referring to the principles laid down in the judgments would contend that, it is settled law that when no offence is made out the accused cannot be prosecuted and made to be arraigned as an accused in Criminal Trial. The learned counsel referring to the judgment in the case of Ashok Chaturvedi & Ors v. Shitul H Chanchani & Anr, requires to be applied.
26. The learned counsel would submit that for this reason the petitioner has relied upon in the case of Shanku Concretes Pvt. Ltd. v. State of Gujarat reported in 2000 Cri.L.J.1988, wherein, though Section 138 of the NI Act is enacted as a punitive measure for due discharge of civil liability and penal action has been prescribed, close judicial scrutiny of 15 the facts and circumstances of the case are held to be absolutely necessary.
27. The learned counsel also referred to the recent judgment of the Apex Court in the case of Basalingappa v. Mudibasappa reported in (2019) 5 Supreme Court cases 418, and referring to this Judgment, the learned counsel would submit that the Apex Court in this judgment, held that, the complainant will have to initially lead evidence under Section 139 of the NI Act and rebut the presumption, which is lacking in the present case. The learned counsel would submit that the issuance of summons is wholly without jurisdiction. The learned counsel vehemently contends that it is necessary that when a sworn statement be recorded it should also contain the ingredients of Section 139 of the NI Act when the same has not been stated in the affidavit and also there is an admission that the loan was allegedly received during 2013, there is clearly lack of application of mind on part of the Magistrate in the matter of issual of summons, therefore, the judgments relied on in S.Natarajan's case (supra) that only after the accused rebuts 16 the presumption during a trial the matter can be disposed off is far-fetched.
28. The learned counsel would submit that it is apparent from the complaint that the claim was barred and thus the complaint ought to have been rejected in view of the fact and law laid down in The Bidar Urban Co-operative Bank Ltd,'s case, wherein there is no legally recoverable debt and that the cheque in question does not amount to acknowledgement of a debt as has been held in the very same judgment placing reliance on Krishna Janardhan Bhat v. Dattatrey. The learned counsel also would submit that the Trial Court has committed an error in not considering the fact that the cheque did not bear any endorsement at the back to pay amount to the bearer. It was neither an endorsement in Blank or in full.
29. Per contra, learned counsel appearing for the respondent would vehemently contend that this petition is filed under Section 482 of Cr.P.C, and the same has been used sparingly. It is also contended that no grounds was urged in the 17 Revision regarding the same as time barred and for the first time in this petition the said new ground has been urged.
30. The learned counsel also would submit that it is not in dispute that a cheque issued is self-cheque and the word "bearer" is not struck off. The complaint averments clearly constitute an offence invoking under Section 138 of the NI Act. The cheque which was returned with an endorsement 'Account was closed'. Hence, it attracts Section 138 of the NI Act.
31. The learned counsel in support of his arguments, he relied upon the four judgments with regard to the issue of not struck off the word 'bearer'. He relied upon the Judgment of this Court in the case of B.Sarvothama v. S.M. Haneef reported in 2013 SCC OnLine KAR 5328. The learned counsel brought to the notice of this Court paragraph Nos.4, 8 and 9 and would contend that the material discloses that the complainant had received a bearer cheque for consideration and in discharge of a legal liability and was a holder in due course, of the same. The dishonour of the cheque was for the reason that the account of the petitioner did not carry sufficient funds. But in the case on 18 hand "the account was closed". The burden was heavy on the petitioner to establish that the cheque was not issued in discharge of a legal liability. The learned counsel also would contend that this Court in detail discussed with regard to when the word "bearer" is not struck off he would become holder in due course.
32. The learned counsel also relied upon the Judgment of Delhi High Court in Adigear International's case (supra), and brought to the notice of this Court that in paragraph No.13 discussed with regard to the holder in due course and also brought to the notice of this Court in paragraph Nos.23 and 25 that, once the issuance of the cheques is admitted and as the words "or bearer" have not been struck off, the complainant is held to the holder of the said cheques in due course though it was written as self and thus he is entitled to receive the cash and on dishonouring of the said cheques, he can very well file the complaint.
33. The learned counsel also relied upon the Judgment of the Kerala High Court passed in the case of Sarafudheen v. T. 19 Muhammed Ashraf reported in 2016 SCC OnLine Ker 9538 (Criminal Appeal No.1870 of 2009), and brought to the notice of this Court that the paragraph No.12 of the Judgment with regard to the term "or bearer" has not been scored off. The learned counsel in respect of time barred cheque is concerned, referred the Judgment of the Apex Court reported in M.M.T.C. Ltd.'s case (supra), the Apex Court in paragraph Nos.13 to 17, discussed in detail and held that the complaint need not allege existing of a subsisting debt or liability against which cheque issued. Burden of proving non-existence of any debt or liability is on the accused, to be discharged at the trial. Prior to that complaint cannot be quashed by High Court under Section 482 of Cr.P.C.
34. The learned counsel also relied upon the judgment of the Apex Court in S. Natarajan's case (supra), in this Judgment, the Apex Court held that with regard to legally enforceable debt, the very contention that complaint alleging time barred cheque, it is held, merely because at time of issuance of cheque, debt had become time barred, complaint 20 cannot be quashed. Whether debt was time barred or not can be decided only after evidence is adduced, it being mixed question of law and fact.
35. The learned counsel also relied upon the Judgment in the case of Pulsive Technologies Private Limited's case (supra), referring to this Judgment, he brought to the notice of this Court that paragraph No.10 of the judgment, the Apex Court in this Judgment has held that, when the High Court was dealing with a petition filed under Section 482 of Cr.P.C, for quashing the complaint, considered the factual issue as to whether the complainant had discharged its obligations or not, the High Court could not have given its final verdict at this stage. It is a matter of evidence. This is exactly what this Court said in M.M.T.C. Ltd's case (supra). Though the High Court referred M.M.T.C. Ltd's case (supra), it failed to note the most vital caution sounded therein. Whether any money is paid by the accused to the complainant is a matter of evidence. The accused has ample opportunity to probabilise his defense. On that count, in the facts of the case, the complaint cannot be quashed. 21
36. The learned counsel also relied upon the judgment in the case of HMT Watches Limited's case (supra), in this Judgment, the Apex Court held that, if complaint was with ulterior motive then power under Section 482 can be exercised to prevent abuse of process. Where complaint filed was genuine then High Court cannot travel beyond prescribed limits. It was made clear that sometimes on same set of facts, civil and criminal proceedings are maintainable. Exercise of powers under Section 482 of Cr.P.C. based on disputed question of fact, impermissible, only trial Court can determine disputed questions of fact. The learned counsel referred to these judgments relied upon paragraph Nos.10 and 12 and in paragraph No.13, the Apex Court observed that the High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact.
37. Having heard the arguments of the respective learned counsel and also on perusal of the grounds of the petition, the following points that would arise for the consideration of this Court are:
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(i) Whether this Court can quash the proceedings in coming to the conclusion that the issuance of self cheque in respect of the time barred debt?
(ii) Whether the self cheque issued by the petitioner attracts Section 138 of the Negotiable Instruments Act, 1881?
(iii) Whether both the Courts have committed an error in taking the cognizance and confirming the cognizance by the Revisional Court and it requires an interference of this court exercising the powers under Section 482 of Cr.P.C.?
(iv) What order?
Point No.(i):
38. The first count of argument of the petitioner's Counsel is that the issuance of self cheque is in respect of the time barred debt. It is contended that the transaction according to the complainant was taken place four years prior to the issuance of alleged self cheque and the same is barred by limitation.
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39. The learned counsel in the synopsis filed by him relied upon several judgments of different High Courts and also the Judgment of the Apex Court and mainly argued that there cannot be any valid acknowledgement of liability within the three years period of limitation and also contend that Section 25(3) of the Contract Act and the law laid down by the Division Bench referring to Section 25(3) of the Contract Act is direct conflict in the law laid down by the full bench. It is also contended that when the transaction was taken place four years prior to the issuance of the cheque and by issuing the self cheque it will not be a valid acknowledgement of debt.
40. The learned counsel vehemently contends that a cheque given in discharge of a time barred debt will not constitute a promise in writing not even an implied promise but will under Section 30 of the NI Act on dishonour give rise to a Civil liability and not a Criminal liability under Section 138 of the NI Act.
41. It is pertinent to note that the learned Counsel appearing for the respondent relied upon the Judgment of the 24 Apex Court. The Apex Court in S. Natarajan's case (supra), categorically held that the very contention that the complaint is time barred cheque cannot be quashed. Whether debt was time barred or not can be decided only after evidence is adduced, it being mixed question of law and fact. This Judgment is aptly applicable to the case on hand.
42. The very contention of the petitioner is that it is a time barred transaction; the same has to be decided only after recording the evidence not at the preliminary stage of taking the cognizance. It is settled law that whether it is time barred or not involves disputed facts and the same cannot be determined in a proceeding under Section 482 of Cr.P.C. since it involves mixed question of law and fact. Hence, the very contention that the transaction is time barred cannot be decided while taking the cognizance. The Apex Court also in M.M.T.C. Ltd.'s case (supra), has categorically held that complaint need not allege existing of a subsisting debt or liability against which cheque issued. Burden of proving non-existence of any debt or liability is on the accused, to be discharged at the trial. Prior to that 25 complaint cannot be quashed by High Court under Section 482 of Cr.P.C. In the case on hand also, the Court has only after considering the evidence has to decide whether the liability is in existence or not and the same cannot be decided without recording the evidence. Hence, Section 482 of Cr.P.C. cannot be invoked to quash the proceedings.
43. The learned counsel relied upon the Judgment of this Hon'ble Court rendered in Criminal Appeal No.200057/2016 in the case of The Bidar Urban Co-operative Bank Ltd., v. Mr. Girish, he would contend that, regarding time barred transaction is concerned, the said Judgment is delivered on merits not at the stage of taking cognizance. Hence, the same is not applicable to the case on hand.
44. The Apex Court also in the case of Pulsive Technologies Private Limited's case (supra), has categorically held that the High Court was dealing with a petition filed under Section 482 of Cr.P.C. for quashing the complaint. Take note of the factual issue, as to whether the complainant had discharged its obligations or not, the High Court would not have given its 26 final verdict at this stage. It is a matter of evidence. The Apex Court reiterating the principles laid down in the Judgment of M.M.T.C.'s case (supra), has observed that the High Court failed to take note of the most vital caution sounded therein. Whether any money is paid by the accused to the complainant is a matter of evidence. In this case also it is the case of the complainant that he lent an amount of Rs.35,00,000/- and in part payment towards the liability, two self-cheques are issued and the one was honoured and the present one is the subject matter of the cheque, which is in dispute and the petitioner also did not dispute issuance of two cheques whether the same is towards the liability or not has to be decided only after recording the evidence.
45. The Apex Court also in the case of HMT Watches Limited's case (supra), categorically held that Section 482 of Cr.P.C, can be exercised only to prevent abuse of process and further observed that sometimes on same set of facts, civil and criminal proceedings are also maintainable and further held that the sitting under Section 482 of Cr.P.C, while exercising the 27 powers disputed question of fact cannot be disabled. Only the Trial Court can determine the disputed questions of fact. Having considered the principles laid down in the Judgments referred supra, though the petitioner's counsel referred several judgments of different High Courts, it is settled law that whether the transaction is time barred or not has to be considered only after the trial not at the preliminary stage or at the time of taking cognizance. Hence, point No.(i) raised by this Court is answered as 'negative'.
Point No.(ii):
46. The second count of argument of petitioner's counsel is that the self cheque issued by the petitioner without the endorsement does not attract Section 138 of the NI Act. The learned counsel in support of his argument he relied upon several judgments, particularly, the Judgment of Gauhati High Court in the case of Dr. Jiten Barkakoti v. Subrata Patangia & anr. reported in 2006(1) DCR 278, referring to this Judgment, the learned counsel would contend that the dishonour of self-drawn cheque does not tantamount to penal offence. 28
47. The learned counsel also regarding the question whether self-cheque issued by the drawer without the endorsement attracts Section 138 of the NI Act or not vehemently contend that there is no endorsement in the self- cheque. Hence, the same does not attract Section 138 of the NI Act.
48. Per contra, the learned counsel appearing for the respondent relied upon the Judgment of this Court in B.Sarvothama's case (supra), and submits that this Court dealt with the similar issue and discussed in para No.5 and relied upon Section 9 of the NI Act and so also the Judgment in the case of Mahesh Goyal v. S.K. Sharma reported in 1997 Cri.L.J. 2868 and Rama Shetty's case. Referring to these judgments would come to a conclusion that when the word in the self cheque is "or bearer", normally found on a cheque leaf, were intact or were scored off. The opinion expressed therein is with reference to the tenor of Section 138 of the NI Act. It is also observed that the cheque in question was drawn on self or bearer. It is further observed that several High Courts have taken a view that a 29 bearer cheque, if dishonoured, would attract the rigour of Section 138 of the NI Act. In paragraph No.8 discussed with regard to 'holder in due course' and in paragraph No.9, it is held that if word "bearer" has not been deleted and even if it is not scored off, if the same was in possession and presented before the bank, but it was dishonoured. It is clear that it was 'holder in due course'. If the word "bearer" is not scored off, he becomes the 'holder in due course' and it attracts Section 138 of the NI Act. The Delhi High Court also in its judgment in Adigear International's case (supra), reiterates the same and discussed the same in paragraph No.13 with regard to 'holder in due course' and so also in paragraphs Nos.23 and 25 discussed in detail and comes to a conclusion that once the issuance of the cheques is admitted and as the words "or bearer" have not been struck off, the complainant is held to be the holder of the said cheques in due course though it was written as self and thus he is entitled to receive the cash and dishonouring of the said cheques, he can very well file the complaint.
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49. The Kerala High Court in Sarafudheen's case (supra), discussing the same in paragraph No.11 and in paragraph No.12 held that the cheque is styled as a self cheque and over and above it, the term "or bearer" has not been scored off. The holder of the cheque could be a 'holder in due course', who could maintain a complainant under Section 142 of the NI Act.
50. Having perused the principles laid down in the Judgment, the very contention that there is no endorsement and the self cheque does not attract Section 138 of the NI Act, cannot be accepted at this juncture. The respondent made out the prima facie case. In view of the principles laid down in the Judgments referred above, point No.(ii) raised by this Court is answered as 'affirmative'.
Point No.(iii):
51. The other count of the argument of the petitioner's counsel is that the Magistrate has committed an error in taking cognizance and the Revisional Court also committed an error in taking cognizance. The said contention also cannot be accepted 31 for the reason that when this Court answered point No.(ii) as affirmative, it attracts Section 138 of the NI Act. The contention that it does not attract Section 138 of the NI Act cannot be accepted. The learned Magistrate having taken note of the material available on record rightly took the cognizance. The other contention is that it is a time barred debt cannot be decided at the time of taking the cognizance. The Revisional Court also while dismissing the revision discussed in detail in paragraph No.14 that admittedly the signature of the cheque in question is not in dispute and also comes to the conclusion that the complainant is a holder in due course of the said cheque. It is further observed that the petitioner herein himself admitted in his reply to the demand notice dated 03.05.2019 that the petitioner handed over two self cheques each for Rs.5 Lakhs. It is also clear that the word "bearer" has not been struck off. It is further observed that the scope of revision is very limited and the merits of the case cannot be decided in a revision petition. Further observed that the truth or falsity cannot be entered into by the Revisional Court, that too, in the initial stage of the case. I do not find any error committed by the Revisional Court also in 32 confirming the taking of cognizance. The matter needs a full- fledged trial to decide the issue involved between the parties and the grounds which have been urged before this Court by the petitioner can be raised before the Trial Court during the course of the trial and the sitting under Section 482 of Cr.P.C, the Court cannot quash the same. Hence, there is no merit in the petition.
52. In view of the discussions made above, I pass the following:
ORDER The petition is dismissed.
Sd/-
JUDGE cp*