Madhya Pradesh High Court
Arvind Kumar vs Punjab National Bank, A Banking Company ... on 5 September, 2013
1 M.Cr.C. No.1712/2009
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE A.K.SHRIVASTAVA
M.Cr.C. No.1712 / 2009
APPLICANT : Arvind Kumar, Retired Railway Guard,
S/o. Shri Chandra Shekhar Sharma, R/o.
Qr.No.R.B.-II, 450-B, Near Yard, Itarsi
District Hoshangabad (M.P.)
Versus
RESPONDENT: Punjab National Bank, A Banking
Company (Upkramo Ka Arjan Avam
Antaran) Adhiniyam 1970, Ka Panchav Ke
Antargan Nigam Nikaya, having Head
Office-7, Bhikaji Complex, New Delhi,
having a Branch office at Hoshangabad,
through Branch Manager, S.C. Nanda.
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Applicant by Shri Umesh Trivedi, Advocate.
None for respondent.
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ORDER
(05/09/2013) This is an application under Section 482 of Cr.P.C. for the quashment of complaint case No.533/2008 registered under Section 138 of Negotiable Instruments Act, 1881 (in short "Act of 1881") against the applicant filed on behalf of respondent Punjab National Bank Branch Hoshangabad (hereinafter referred to as 2 M.Cr.C. No.1712/2009 "Bank").
2. Indeed the respondent-Bank filed a complaint under Section 138 of the Act of 1881 against the applicant arraying him as an accused with an averment that he took a loan of Rs.5.50 lac on 07.10.2002 and was obliged to deposit monthly installments which he failed to deposit. On 14.02.2008 the applicant-accused issued a cheque in favour of Bank worth Rs.3.50 lac but the same was dishonoured on account of want of funds. Eventually a notice under Section 138 of the Act of 1881 was sent by the Bank on 18.02.2008 to the accused-applicant making demand of the debt. Despite the said notice was received by the accused-applicant, he failed to deposit the requisite payment. Hence, the complaint has been filed.
3. Learned Judicial Magistrate, First Class, Hoshangabad registered the case and issued summons to the applicant. Hence, this application under Section 482 of CrPC has been filed for quashment of complaint case.
4. The contention of learned counsel for the applicant is that as per own showing of the Bank in the complaint particularly para 3 the claim has become time barred because on 07.10.2002 the loan of Rs.5.50 lac was obtained by applicant-accused and having failed to deposit the monthly installments, when he gave a cheque of Rs.3.50 lac on 14.02.2008 the same was dishonoured on account of want of funds. Learned counsel submits that because the cheque was submitted on 14.02.2008 after six years of taking of 3 M.Cr.C. No.1712/2009 loan since the claim became time barred, no offence has been committed by the applicant even if the cheque is dishonoured. In support of his contention, learned counsel has placed reliance upon the Single Bench decision of Andhra Pradesh High Court in Girdhari Lal Rathi v. P.T.V. Ramanujachari & another 1997 (2) Crimes 658. Further it has been contended by him that registered A/D notice was sent on behalf of the State Bank of India, Pipariya Branch, but, the complaint has been filed on behalf of Punjab National Bank. Learned counsel submits that the Punjab National Bank never sent any notice under Section 138 of Act of 1881, therefore, the complaint is not maintainable. Hence, it has been prayed that by allowing this application under Section 482 of CrPC, the complaint case be quashed.
5. No one has put appearance on behalf of respondent despite service. However, I have gone through the averments made in the complaint as well as certified copy of the affidavit of Shri Ibrahim Vargis, Manager, Punjab National Bank, Hoshangabad Branch deposed under Section 145 of the Act of 1881, certified copy of the cheque which was dishonoured and other relevant documents. I have also paid heed to an important document (Annexure-P/4) which is a draft of registered AD notice dated 18.02.2008 sent by counsel for the complainant-respondent to the applicant. After perusing the entire material placed on record and having heard learned counsel for applicant, I am of the view that this 4 M.Cr.C. No.1712/2009 application under Section 482 of CrPC deserves to be allowed.
6. On bare perusal of para 3 of the complaint it is luminously clear that recovery of the loan amount had become time barred. It would be apt to quote para 3 of the said complaint which reads thus;-
¼03½ ;g fd vfHk;qä }kjk ifjoknh cSad ls Hkou Ø; ,oa fuekZ.k djus gsrq fnukad 07@10@2002 dks 5]50]000¾00 :i;s dk Hkou _.k izkIr fd;k x;k FkkA vfHk;qä dks mä _.k dh okilh ifjoknh dks ekfld fd'rksa esa fu;fer :i ls Hkqxrku dh tkuk FkkA vfHk;qä }kjk mlds _.k dh okil vnk;xh fu;fer :i ls ugha dh xbZ rFkk vfHk;qä us vius _.k fd'rksa dh nsunkjh isVs ifjoknh dks 3]50]000¾00 ¼rhu yk[k ipkl gtkj :i;s½ dk ,d pSd Øekad 289083 fnukad 14@02@2008 tks fd ifjoknh iatkc us'kuy cSad dh 'kk[kk gks'kaxkckn ij ns; Fkk] vius gLrk{kj dj iznku fd;k FkkA This para speaks for itself and specifically it has been averred that on 07.10.2002 the applicant took loan of Rs.5.50 lac and thereafter in order to repay part payment of loan he issued a cheque in favour of complainant on 14.02.2008 which would mean that after more than 5 years and four months the cheque was issued. There is nothing in the complaint in order to hold that any document of acknowledgment acknowledging the debt was submitted by the applicant within limitation as envisaged under Section 18 of the 5 M.Cr.C. No.1712/2009 Indian Limitation Act or any payment was made either towards principal amount or interest as envisaged under Section 19 of the said Act. Thus, the recovery of loan became time-barred. The question now would rest upon the pivot as to whether the complaint could be filed under Section 138 of the Act of 1881 on account of dishonour of cheque dated 14.02.2008 on account of want of funds. The complaint was filed on 10.03.2008 and therefore prima facie it appears that it was filed within limitation, but, according to me, the debt is not legally enforceable. Section 138 of the Act of 1881 is applicable to any debt or other liability, which would mean the debt or liability which is legally recoverable. Indeed there is explanation to Section 138 in that regard and I would like to quote explanation which reads thus;-
Explanation;- For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability.
Hence, debt or liability should be legally recoverable. When upon own showing by the complainant in para 3 of the complaint, time barred debt has been claimed, since it is not legally recoverable, therefore, according to me, provisions of Section 138 of Act of 1881 cannot be triggered and set in motion. The decision of Girdhari Lal Rathi (supra) is squarely applicable in the present case.
7. Since I have already held hereinabove that debt which was taken by the applicant and the recovery thereof became time 6 M.Cr.C. No.1712/2009 barred, therefore, according to me the complaint has been registered against the applicant in contravention to the law and the complaint case deserves to be and is hereby quashed.
8. Since the complaint is quashed on the aforesaid ground, I am not dealing the second submission put-forth by learned counsel for the applicant which is in respect of sending the notice on behalf of State Bank of India, Pipariya Branch. However, it would be suffice to mention here that on perusal of notice itself it is gathered that it was sent on behalf of Punjab National Bank, Hoshangabad Branch although in para 1 of the notice it has been mentioned that client of the complainant's counsel is State Bank of India Pipariya Branch. According to me, this appears to be a typographical error, but, in all fairness in the complaint para 6 this position should have been clarified while drafting the complaint.
9. For the reasons stated hereinabove, this application under section 482 of CrPC is hereby allowed and the proceedings of complaint case No.533/2008 registered under Section 138 of Negotiable Instruments Act, 1881 (in short "Act of 1881") against the applicant stand quashed.
(A.K. Shrivastava) Judge 05.09.2013 SS