Supreme Court - Daily Orders
Omniplast Pvt.Ltd. vs Standard Chartered Bank . on 26 February, 2015
Bench: Fakkir Mohamed Ibrahim Kalifulla, Abhay Manohar Sapre
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2334/2009
OMNIPLAST PVT.LTD. Appellant(s)
VERSUS
STANDARD CHARTERED BANK & ORS. Respondent(s)
O R D E R
Heard Mr. H.M. Singh, learned counsel for the appellant and Mr. Shyam Divan, learned senior counsel for respondent Nos.1 and 2.
The appellant is aggrieved by the order of the High Court dated 17.8.2007 passed in Criminal M.C. No.137/2004 in and by which the High Court quashed the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act as against the respondents.
To trace the brief facts, the appellant Signature Not Verified claimed that it entered into an agreement of Digitally signed by Narendra Prasad Date: 2015.03.11 17:16:32 IST Reason: sale on 4.3.2003 with M/s. A.D. Exports Private 1 Limited for the sale of an undescribed property at Hansi, District Hisar in the State of Haryana for Rs.74,86,000/- against which the said M/s. A.D. Exports Private Limited agreed to pay earnest money of Rs.44,86,000/- and gave a pay order drawn on first respondent Bank. The pay order was presented on 5.3.2003 and it was returned on 12.3.2003 with the endorsement “refer to drawer, account attached”. The complaint under Section 138 of the Negotiable Instruments Act came to be filed on 6.5.2003. Summons were issued on the respondents on 7.5.2003. Application for recalling the summons was filed by the respondents on 9.6.2003, in which the learned Trial Magistrate passed orders on 1.11.2003 dropping the proceedings as against respondent No.1 and retaining the same as against respondent No.2. However, the respondents filed petition under Section 482 Cr.P.C. in the High Court for quashing of the whole of the complaint on the ground that Section 138 of the Negotiable Instruments Act itself was not applicable to the case on hand. By the impugned order the learned Judge 2 accepted the stand of the respondents to quash the complaint in its entirety. That is how the appellant is aggrieved and has come forward with this appeal.
Mr. Singh, learned counsel for the appellant, in his submission contended that the pay order issued by the bank is nonetheless a cheque satisfying the definition of ‘cheque’ under Section 6 of the Negotiable Instruments Act and, therefore, complaint under Section 138 of the Negotiable Instruments Act was maintainable before the Trial Court. Learned counsel relied upon a decision of this Court in Punjab and Sind Bank v. Vinkar Sahakari Bank Limited and others, reported in (2001) 7 SCC 721, in support of his submissions.
Mr. Divan, learned senior counsel for respondent Nos.1 and 2, in his submissions, in the foremost, pointed out that there were lot of doubts as to the very basis on which the pay order was secured by M/s. A.D. Exports Private Limited and issued to the appellant, inasmuch as the appellant did not come forward with the full description of the property with reference 3 to which the agreement was stated to have been reached on 4.3.2003 for a huge sale consideration of Rs.74,86,000/-, for which pay order for the value of Rs.44,86,000/- was handed over on condition of delivery of the document of title and possession. Learned senior counsel further contended that de hors the said serious doubt as regards the genuineness of the very transaction as between the appellant and M/s. A.D. Exports Private Limited, the other question which looms large before this Court is as to the very applicability of Section 138 of the Negotiable Instruments Act, inasmuch as none of the ingredients specified in the said Section gets attracted in respect of a pay order issued by the bank and for honoring payment secured under the pay order for which invocation of Section 136 of the Negotiable Instruments Act may not be the proper remedy at all. It was also submitted that when on behalf of the respondents application was moved for recalling the summoning order dated 7.5.2003, by order dated 1.11.2003, proceedings as against 4 Respondent No.1 were dropped and the appellant did not take any steps to challenge the said order passed by the learned Magistrate.
When we consider the above submissions and the development that had taken place after the passing of the order of the learned Magistrate dated 1.11.2003, at the very outset, we find that the appellant cannot proceed against respondent no.1 under any circumstance as regards the complaint preferred before the learned Trial Judge. Once respondent no.1 stood excluded to be dealt with, we fail to see as to how the complaint could be maintained as against respondent no.2, who was only a Branch Manager of respondent no.1/Bank. Leaving it aside for a while, when we refer to the decision relied upon by learned counsel for the appellant it is stated therein that a pay order is nonetheless a ‘cheque’ having regard to the definition of ‘cheque’ under Section 6 read along with definition of a ‘Bill of Exchange’ under Section 5 of the Negotiable Instruments Act. However, when we read the said judgment in detail, we were not able to discern any 5 definite principle laid down therein as to how far Section 138 of the Negotiable Instruments Act can be applied with reference to a ‘Bill of Exchange’ as against ‘cheque’. Section 138 has been set out in detail by making specific reference to the ‘drawer’ of the ‘cheque’ by a person on an ‘account’ maintained by him for payment of any amount of money from out of ‘that account’ for the discharge of any debt or other liability because of non-availability of that amount of money standing to the credit of ‘that account’ was insufficient or it exceeded the amount arranged to be paid from ‘that account’ by way of an agreement made with the Bank. Having regard to such specific prescriptions set out in Section 138 referring to ‘the person’ who issued the ‘cheque’ again referable to ‘an account’ of that person so on and so forth, we have our own doubts as to how far the said decision rendered in respect of pay order issued can be applied to the facts of this case. However, for other reasons which weighed with this court for not granting any relief in this appeal, we do not wish to go 6 into the said issue vis-a-vis the judgment relied upon by counsel for the appellant and we leave it open for consideration as and when appropriate case arises before us.
As pointed out by us earlier, in the case on hand respondent no.1/Bank has been already dropped from the proceedings by order dated 1.11.2003 which has become final and conclusive. Therefore, in the first instance, even if the appellant was to be permitted to proceed with the complaint as against respondent no.2, very many issues as regards how the pay order came to be issued and the return of the same by respondent no.1/bank would attract the penal provisions of Section 138 etc., which cannot be examined in the absence of the concerned accused, namely, the Bank being a party before the Court. Therefore, on this ground itself there is no scope to grant any relief to the appellant for proceeding with the complaint as against respondent no.2.
That apart, as rightly pointed out by Mr. Divan, learned senior counsel, in the absence 7 of necessary pleadings with particular details as regards the property based on which the transaction was stated to have been entered into between the appellant and M/s. A.D. Exports Private Limited there is every justification in the stand of the respondents to doubt the full transaction as between the appellant and M/s. A.D. Exports Private Limited. More so, when a huge sum of Rs.44,86,000/- was stated to have been parted by the said agreement holder to the appellant who agreed to handover the possession and along with the title deeds. Here again, we do not wish to go into the details of the said stand raised on behalf of respondents but yet we only state that such a stand definitely creates very serious doubts about the whole transaction itself, especially when the sum of Rs.44,86,000/- covered by the pay order was returned by respondent no.1/Bank in order to comply with the attachment proceedings issued by the Income Tax Department.
In such circumstances, while exercising the power of this Court under Article 136 of 8 the Constitution of India, we are convinced that it is not a fit case where we should go into the correctness of the order impugned herein and consequently, we do not find any merit to grant any relief to the appellant in this appeal. The appeal, therefore, fails and the same is dismissed.
................................J. [FAKKIR MOHAMED IBRAHIM KALIFULLA] ................................J. [ABHAY MANOHAR SAPRE] NEW DELHI;
FEBRUARY 26, 2015.
9
ITEM NO.1 COURT NO.7 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 2334/2009
OMNIPLAST PVT.LTD. Appellant(s)
VERSUS
STANDARD CHARTERED BANK & ORS. Respondent(s)
(with office report)
Date : 26/02/2015 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE For Appellant(s) Mr. Harinder Mohan Singh,Adv.
Ms. Shabana,Adv.
For Respondent(s) Mr. Shyam Divan,Sr.Adv.
Mr. Sumit Bansal,Adv.
Mr. Ateev Mathur,Adv.
Mr. Gagan Gupta,Adv.
Mr. P.K. Dey,Adv.
Mr. Abhishek Atrey,Adv. For Mr. D. S. Mahra,Adv.
UPON hearing the counsel the Court made the following O R D E R The appeal is dismissed in terms of the signed order.
(NARENDRA PRASAD) (SHARDA KAPOOR)
COURT MASTER COURT MASTER
(Signed order is placed on the file) 10