Allahabad High Court
Naveen Saxena vs State Of U.P. And Another on 5 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2155
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on:- 23.07.2021 Delivered on:-. 05.08.2021 Court No. - 49 Case :- APPLICATION U/S 482 No. - 9331 of 2021 Applicant :- Naveen Saxena Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Daga Counsel for Opposite Party :- G.A. Hon'ble Vivek Agarwal,J.
1. Sri Amit Daga, learned counsel for the applicant and learned AGA for the State.
2. Learned counsel for the applicant submits that the applicant is seeking quashing of the criminal complaint dated 08.04.2019 as well as entire proceedings registered in its pursuance as Criminal Complaint Case No.927 of 2019 (Brajendra Kumar Vyas vs. Naveen Saxena) under Section 138 of NI Act, Police Station Sipra Bazar, District Jhansi, including summoning order dated 15.02.2021 passed by the learned Chief Judicial Magistrate, Court No.2, Jhansi.
3. Grounds which have been put forth by learned counsel for the applicant to assail the impugned order are that applicant has been falsely implicated in a case of cheque bounce. It is submitted that the applicant had lost a cheque bearing no. 740500 issued by Dena Bank, Jhansi on account of applicant's account no.114010001415, which had slipped out of his pocket, though it was signed but blank alongwith a hundred rupee stamp paper bearing no. DA498435 dated 21.12.2016. Applicant had lodged a report with the SSP, Jhansi by sending him an application through registered post on 06.12.2017, copy of complaint is enclosed as annexure no.8 to the application. It is submitted that thereafter a certificate was issued by the Branch Manager of Dena Bank on 29.11.2018 to the affect that on 01.11.2017 on request so made by the applicant to stop payment of cheque no.740500 (annexure no.6) was noted. It is submitted that on 09.02.2018 intimation in this regard of loss of cheque was published in Daily News Paper, copy of which has been enclosed as annexure no.9 to the application, for which Amar Ujala Publications Limited issued a receipt on 07.02.2018. It is further submitted that applicant had obtained a certificate from the office of the Senior Post Master, Jhansi that registered article sent on 06.12.2017 and addressed to SSP, Jhansi was delivered on 07.12.2017. This certificate was issued in pursuance to the complaint made by the present applicant on 20.02.2019.
4. It is further submitted that the complainant lodged a complaint by misappropriating a lost cheque and filled huge sum of Rs.80,00,000/- in the name of money transaction made earlier whereas according to the applicant, there was no occasion for such huge transaction and never ever any such amounts as have been claimed by the complainant were transferred to his account and, therefore, on this ground also, complaint is liable to be quashed.
5. Learned counsel for the applicant has placed reliance on the judgment of Karnataka High Court in case of Amzad Pasha vs. H.N. Lakshmana, 2011 Cri. L.J. 552, wherein it is held that when complainant has not placed any evidence to show that he had financial capacity to lend substantial amount of Rs.4,50,000/-, and admittedly when no document evidencing the loan transaction has come into existence, then case of the complainant becomes highly improbable and not acceptable. It has been held that when none of the witnesses, in the presence of whom, loan was paid by the complainant were examined, then adverse inference can be drawn against the complainant and accused is liable to be acquitted.
6. Reliance is also placed on the judgment of Supreme Court in case of Raj Kumar Khurana vs. State of (NCT of Delhi) & Another; (2009) 6 SCC 72, wherein it is held that if cheque is returned by Bank on ground, then report of loss of cheque was filed by drawer, then Section 138 of N.I. Act, is not attracted. It is submitted that a complaint under Section 138 of N.I. Act will be maintainable only when cheque is returned by the bank unpaid. Such non-payment made either be; (i) because of the amount of money standing to the credit of that amount is insufficient to honor the cheque, or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
7. Applicant has also placed reliance on the judgment of Co-ordinate Bench of this High Court dated 22.01.2020 passed in an application under Section 482 No.33953 of 2013, where the application filed on behalf of applicant- Rahisuddin Saifi, accused in the matter of Complaint Case No.145 of 2013 (Javed Akhtor vs. Rahisuddin Saifi), has been allowed because it was averred before the co-ordinate Bench that the cheque was not encashed on the ground that account holder i.e. applicant had stopped payment.
8. Learned AGA could not dispute the proposition of law laid down in case of Raj Kumar Khurana (supra), so also in case of R. Kalyani vs. Janak C. Mehta and Ors., 2009(1) SCC 516 and DCM Financial Services Ltd. vs. J.N. Sareen and Ors. 2008 (8) SCC 1.
9. Learned AGA for the State on the other hand opposes the prayer made by learned counsel for the applicant and submits that it is matter of trial where it will be determined that whether factual defences taken by the present applicant/accused are entertainable or not.
10. After hearing learned counsel for the parties and going through the record, it is evident that in case of HMT Watches Limited vs. M.A. Abida and Another, (2015) 11 SCC 776, in paragraph 14, it is held that in case of Modi Cements Limited vs. Kuchil Kumar Nandi, (1998) 3 SCC 249 so also in case of Pulsive Technologies (P) Limited vs. State of Gujrat and Others, 2014 (13) SCC 18, it has been held that if a cheque is dishonored because of stop payment instruction, even then the offence punishable under Section 138 of N.I. Act gets attracted.
11. It is further held that where there existed any outstanding liability or not are questions of facts and theses issues can only be determined by the trial court after recording evidence. High Court erred in giving its finding on disputed questions of fact, therefore, it is held that interference of High Court under Section 482 Cr.P.C. is unsustainable as the High Court travelled beyond its jurisdiction. This aspect and the case law on the subject has not been considered by a co-ordinate Bench of this Court while delivering its order in case of Rahisuddin Saifi (supra) and, therefore, if an order has been obtained by not presenting the correct and up to date legal position before the Court concerned, then that order of Co-ordinate Bench is not binding on this Court. Therefore, as the law laid down in case of Rahisuddin Saifi (supra) is contrary to the principles of law reiterated by the Supreme Court, it is neither a binding precedent nor binding on a Co-ordinate Bench.
12. In fact a Three Judge Bench of Supreme Court in case of Modi Cements Limited (supra) has held that stop payment instructions cannot obviate the offence under Section 138 if otherwise made out. It has been further held that neither the said liability could have been avoided by giving notice to the payee or holder in due course prior to presentation of the cheque wherein the payee or holder in due course was advised not to present the same in encashment and he thus presented it and the cheque is returned with stop payment instructions. It further held that the ruling in case of Electronics Trade and Technology Development Corpn. Ltd., Secunderabad vs. Indian Technologists and Engineers (Electronics) Pvt. Ltd. and Ors (1996) 2 SCC 739 and followed in K.K. Sidharthan vs. T.P. Praveena Chandran and Ors. (1996) 6 SCC 369 being contrary to the object and purpose of Sections 138-142 overruled.
13. It is held that presumption under Section 139 is attracted to such situation and this was wrongly ignored. Drawer of the cheque will have opportunity to rebut the presumption at the trial and, thereafter, High Court was not justified on facts in quashing the complaint under Section 482 Cr.P.C. at the threshold.
14. In case of Rangappa vs. Mohan (2010) 11 SCC 441, again a Three Judge Bench of Supreme Court held that presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability however such presumption is rebuttable in nature. It outlines the manner in which defence can be raised by accused and further held that dishonor of post dated cheque on account of stop payment instructions, sent by drawer to his bank will attract the provisions of Section 138 irrespective of insufficiency of funds in his account.
15. This judgment of Supreme Court overrules the judgment in case of Krishna Janardhan Bhat vs. Dattatraya G. Hegde (2008) 4 SCC 54 and affirmed the law laid down in case of Goaplast Pvt. Ltd. vs. Chico Ursula D'Souza and Ors. (2003) 3 SCC 232. Again this issue came up for consideration before a Division Bench of Supreme Court in case of Pulsive Technologies Private Limited (supra) and it is held that dishonor of cheque on "stop payment instructions" are sufficient to prosecute accused under Sections 138, 139 and 142 of N.I. Act. It is held that quashment of proceedings without invoking presumption under Section 139 ; drawing conclusions in absence of any evidence; and on ground that contents of reply sent by accused not pleaded in complaint are unsustainable. It held that High Court exercising its inherent power, drew certain conclusions on facts and quashed the proceedings holding that "stop payment" instruction did not attract Section 138 N.I. Act is unsustainable. It is held that if cheque is dishonored relying on "stop payment" instruction, then also penal provision under Section 138 is attracted. It reversed the judgment in case of Acer India (P) Limited vs. State of Gujrat, Criminal Misc. Application No.1757 of 2007, decided on 08.09.2011 (GUJ).
16. As discussed above, this issue again came up before Supreme Court in case of HMT Watches Limited (supra), where again it is held that High Court should not exercise its inherent powers under Section 482 Cr.P.C. on disputed question of fact, they can be determined only by trial court after recording evidence. It is further held that High Court erred in deciding validity or otherwise of demand notice issued under Section 138 of N.I. Act and authenticity of signature thereon.
17. Similar matter had cropped up before of High Court of Madhya Pradesh, Bench at Gwallior in MCRC No.247/2011, Ramswaroop Tyagi vs. Omkarnath Pandey (2015) 4 MP LJ 237 when drawer of the cheque had invoked the jurisdiction of the High Court under Section 482 Cr.P.C. to assail the order whereby the court below had rejected the application preferred under Section 245 Cr.P.C. The factual backdrop of that case is that non applicant complainant filed a complaint under Section 138 of N.I. Act and the cheque was returned by bank with an endorsement that applicant had asked for "stop payment" complainant had sent a legal notice and ultimately filed a complaint. Summons were issued, charges were framed. Applicant-accused preferred an application under Section 245 Cr.P.C. seeking dropping of charges against him. It was averred that applicant's cheque book was not traceable. He had immediately informed that fact to the police and bank authorities and had requested for stop payment. Accordingly bank had stopped payment on the instructions of the applicant. In this backdrop, applicant had placed reliance on judgment of Supreme Court in case of Raj Kumar Khurana (supra).
18. Placing reliance on the judgment of Supreme Court in case of Goaplast (P) Limited (supra), learned Single Judge of Madhya Pradesh High Court held that the provisions of the N.I. Act were introduced in order to discourage people from not honoring their commitments by way of payment through cheques and it is a trite law that Court should lean in favour of an interpretation which serves the object of the statute. After dealing with the provisions contained in Section 139 of N.I. Act and the law laid down in case of M.M.T.C. Ltd. and Ors. vs. Medchl Chemicals and Pharma (P) Ltd. and Ors., (2002) 1 SCC 234, the Apex Court opined that when cheque is dishonored by reason of stop payment instructions, then by virtue of Section 139, Court has to presume that the cheque was received by the holder for the discharge, in whole or in a part of any debt or liability. Of course, this is rebuttable presumption.
19. Reliance is also placed on the judgment of Three Judge Bench of Supreme Court in case of Rangappa (supra) and Pulsive Technologies Private Limited (supra) and HMT Watches Private Limited (supra) and held that law laid down by a Division Bench judgment in case of Raj Kumar Khurana (supra) is of no assistance to the applicant, more so when, the view taken in MMTC Limited (supra) and Rangappa (supra) is consistently followed by the Supreme Court in subsequent judgments vis Pulsive Technologies (supra) and HMT Watches Private Limited (supra) and in this backdrop held that since a great deal of caution is required in its exercise of extra ordinary jurisdiction under Section 482, a defence of an accused although may appear to be plausible should not be taken into consideration for exercise of such jurisdiction.
20. In the present case, facts are similar and, therefore, when there are judgments of Supreme Court rendered by Three Judges in case of Modi Cements Private Limited (supra) and Rangappa (supra), which have been consistently followed and Supreme Court in case of Raj Kumar Khurana (supra) has not taken into consideration, law laid down in case of Modi Cements Private Limited (supra), judgment in case of Modi Cements Private Limited (supra) will be a binding precedent. Therefore, law laid down in case of Raj Kumar Khurana will be no assistance to the applicant and similarly law laid down by Karnatak High Court in case of Amzad Pasha (supra) ignoring judgment of Supreme Court in case of Rangappa (supra) whereby judgment and order dated 16.10.2005 of the High Court Karnataka Bengaluru has been upheld, whereby High Court of Karnataka reversed the finding of acquittal made by learned JMFC, judgment of High Court passed oblivious of the law laid down in case of Rangappa (supra), which is a Supreme Court judgment too will be of no assistance to the applicant.
21. Needless to say that judgment of co-ordinate Bench in case of Rahisuddin Saifi (supra) will also be of no assistance to the applicant, inasmuch as, it has failed to take into consideration law prior to and subsequent to Raj Kumar Khurana (supra) rendered by Three Judges' Bench of Supreme Court having a binding precedent.
22. Allahabad High Court in case of Deepak Goel v. State of U.P., (2013) 82 ACC 210 also held that in view of the judgment of Supreme Court in case of Modi Cements Private Limited (supra), once a cheque is issued and on presentation is dishonored, penal provision is attracted as stopping of payment will not preclude an action under Section 138 N.I. Act. A co-ordinate Bench of this Court considered law laid down in case of Raj Kumar Khurana (supra) and held it to be distinguishable on facts.
23. Thus, in view of the above judicial scrutiny and legal proposition of law, though the presumption under Section 139 is rebuttable but it is for the trial court to examine after evidence is led before it and this is not a fit case to exercise extra ordinary jurisdiction under Section 482 Cr.P.C.
24. Application fails and is dismissed.
Order Date :- 05.08.2021 Ravi/-