Allahabad High Court
Ashok Kumar Agrawal S/O Gokul Chandra ... vs State Of U.P. And Nirmal Chand Sethia ... on 15 September, 2006
JUDGMENT M.K. Mittal, J.
1. The application has been filed under Section 482 Cr.P.C. to quash the Complaint No. 106/98 Luxmi Traders v. Jai Shakti Plastic and Ors. under Section 138 Negotiable Instruments Act (hereinafter referred as Act)and 420 I.P.C. pending in the Court of Xth Additional Chief Judicial Magistrate, Agra.
2. Heard learned Counsel for the parties and perused the record. The counter and rejoinder affidavits have also been filed.
3. The brief facts of the case are that the opposite party No. 2 filed a Criminal Complaint under Section 138 of the Act, alleging that the complainant does the business of plastic granules. The accused Ashok Kumar Agrawal and Sanjay Agrawal are partners of M/s Jai Shakti Plastic and they used to manufacture and supply plastic pipes etc. The accused gave a cheque No. 434259 dated 15th April 1998 for Rs. 50,000/- towards payment of the goods. The cheque was payable at Canara Bank, Agra, and the accused had assured that if presented at Hank, it would be cashed. The complainant presented the cheque at the bank but it was returned unpaid on 22nd April 1998. The accused gave the cheque with intention to cheat the complainant. Earlier also the accused had given a cheque but had stopped its payment and thereafter had given this cheque. When the cheque was issued the amount in the account of the accused was insufficient and therefore, the accused have committed the offence punishable under the Act. The complainant also gave a registered notice dated 4th May 1998 through counsel and demanded the accused to make the payment within 15 days but it was not done and then he filed the complaint on 4th June 1998.
4. The learned Magistrate examined the complainant under Section 200 Cr.P.C. and his witness Harish Chandra Sharma under Section 202 Cr.P.C. and finding that a prima facie case was made out, directed to summon the accused under Section 138 of the Act. Against that order the accused filed objection but the same was rejected by the learned Magistrate vide order dated 4th June 2001. Against that order the accused filed Criminal Revision but the same was also dismissed by order dated 10th January 2003 by the learned Additional Sessions Judge, Agra.
5. According to the applicant Ashok Kumar Agrawal, the complaint is not legally maintainable and the learned Magistrate has erred in summoning the accused. According to him the complainant was given post dated cheque. He had not purchased any goods and therefore, the accused had informed the bank to stop payment and had also informed the complainant not to present the cheque vide notice dated 5th February 1998, but the complainant presented the post dated cheque and therefore, no offence under Section 138 of the Act is made out against the accused. The accused has also filed the copy of the notice dated 5th February 1998 as Annexure-10. It has also been contended that it was a matter of business transaction and the dispute is of civil nature. According to the accused applicant, the complainant has not specifically stated that the accused were incharge of the business of the firm. In the circumstances prayer has been made for quashing the complaint.
6. The opposite party filed counter affidavit and contended that there were business dealings between the parties even prior to this transaction and the accused are the partners of the firm. The accused gave the cheque dated 15th April 1998 because the goods were supplied to the accused and his contention that no goods were purchased is not correct. According to the opposite party the accused has himself taken the case that the goods were sub-standard and it shows that the goods were supplied and the cheque was paid towards the value of the goods. The cheque was presented but was returned by the Bank. According to opposite party, the accused did not give any notice dated 5th February 1998 and has fabricated this notice, for the purpose of this case. The opposite party has also contended that the applicant had filed objection against the summoning order in the Trial Court and there he did not mention about the giving of any notice on 5th February 1998 asking the complainant not to present the cheque. Had he given any such notice, this fact must have been mentioned in the objection taken by the applicant at the earliest stage and it shows that this notice has been fabricated for the purposes of this case. The opposite party has also taken the case that the cheque was bounced and that it was not a post dated cheque and that in any case the applicant accused has committed the offence punishable under Section 138 of the Act and the dispute is not of a civil nature and there is no legal ground for quashing the complaint and the petition under Section 482 Cr.P.C. is liable to be dismissed with special costs.
7. The learned Counsel for the applicant has contended that the applicant had given post dated cheque as security and had asked the opposite party not to present the cheque for payment and notice was also given to the bank as well as to the complainant. He has also mentioned that a telegram dated 14th April 1998 was also given to the complainant. Learned Counsel for the complainant has contended that no notice dated 5thFebruary 1998 was given and Annexure-10 has been fabricated for the purposes of this case and that the cheque was not a post dated cheque but was given towards the payment for the goods supplied, as the case, as taken by the accused, shows that the goods were supplied although, he claimed them to be sub-standard. He has further contended that the cheque dated 15.4.1998 was presented for the payment at the Bank which was returned by the Bank.
8. As per the contention of the complainant it was not a post dated cheque and the cheque in question was given towards the payment of the goods supplied. Even if for arguments sake, it is taken to be a post dated cheque, we have to see as to what is the liability of the person issuing post dated cheque, if it is bounced by the bank. In the case of Goaplast (P) LTD. v. Chico Ursula D'souza and Anr. , it has been held by the Hon'ble Apex Court that if the drawer issues to a person a post dated cheque and then instructs the bank not to make payment and the cheque is bounced, in such circumstances, notwithstanding that payment was stopped prior to the due date of the cheque, Section 138 was applicable. It was further held that a contrary view would render Section 139 otiose and enable the drawer to take advantage of his own wrong. It has also been held in that case that presumption under Section 139 is rebuttable and therefore, the question whether a case for punishment under Section 138 was made out against the drawer, would have to be decided in the Trial.
9. Learned Counsel for the applicant has cited the case of K.K. Sidharthan v. T.P. Praveena Chandran and Anr. 1997 Allahabad JIC 386 Supreme Court. But in that case the drawer of the cheque had instructed the bank and also the drawee not to present the cheque. Here the facts are different Moreover in view of the law as laid down in the case of Goaplast Private Ltd. (Supra), this ruling does not help the applicant.
10. In view of the above legal position, the accused cannot escape his liability, even if his contention that he had given a post dated cheque and had asked the Bank not to make the payment is accepted. The applicant did not inform the complainant for not presenting the cheque. In any case it is a matter of fact and can be seen by the Trial Court.
11. Learned Counsel for the applicant has further contended that the complainant has not specifically stated that the accused were incharge of the business of the firm and in this connection has placed reliance on the case of Monaben Ketanbhai Shah and Anr. v. State of Gujrat and Ors. . But this contention of the learned Counsel for the applicant is not acceptable as it is a definite case of the complainant that the accused are partners in the firm and this fact has not been denied by the applicant rather he has described himself as partner of the firm.
12. The facts as have come on record show that the complainant supplied the goods to the accused who issued the cheque dated 15.4.1998, which was presented by the complainant at the Bank but was returned unpaid. Therefore, the liability of the accused arises under Section 138 of the Act and it is not a dispute of civil nature.
13. The accused applicant in order to give effect to his contentions, fabricated a notice and has filed in this Court and in the circumstances of the case and in order to check such practice, it is necessary that some special cost be imposed on him.
14. In view of the above, I come to the conclusion that there is no legal defect in the complaint and the learned Trial Court has rightly summoned the accused and there is no ground to quash the complaint and the application under Section 482 Cr.P.C. is devoid of merits and is liable to be dismissed with special costs.
15. The application under Section 482 Cr.P.C. is hereby dismissed. The interim order dated 12.9.2005 is hereby vacated. The applicant shall pay Rs. 5,000/- as special cost to the complainant within 3 weeks from today. He shall deposit this amount in the Trial Court and the same shall be paid by the Trial Court to the complainant forthwith. In case the accused applicant fails to deposit the amount, it shall be recovered from him as arrears of land revenue under the provisions of Criminal Procedure Code.