Jammu & Kashmir High Court
Rajneesh Garg (Director) M/S Focus ... vs Romesh Kumar Mengi on 28 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No. 23/2007 & MP No.28/2007
Date of order:- 28.09.2017
Rajneesh Garg (Director) Vs. Romesh Kumar Mengi
M/s Focus Technology (India)
Pvt. Ltd.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Petitioner(s) : Mr. Ashish Upadhayay, Advocate.
For the Respondents(s) : Mr. Ajay Kr. Gandotra, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioner seeks quashing of criminal complaint titled 'Romesh Kumar Mengi Vs. Rajneesh Garg' instituted by respondent under Section 138 of Negotiable Instrument Act & 420 RPC against the petitioner, pending before learned Munsiff, Reasi. Petitioner also seeks quashing of summoning order dated 04.12.2006 issued by learned Munsiff, Reasi.
2. Petitioner has stated in instant petition that respondent has instituted a complaint titled as Romesh Kumar Mengi Vs. Rajneesh Garg' under Section 138 NI Act and under Section 420 RPC against the petitioner, which is pending trial in the Court of Munsiff, Reasi and the Court took cognizance on the said complaint and issued summons to the petitioner. That the petitioner is a Director of M/s Focus Technology (India) Pvt.
561-A Cr.P.C. No.23/2007 Page 1 of 15 2Ltd. having its office at 27-A, Zamrudpur Behing Kailash Apartment, Kailash Colony, New Delhi-110048 and the company is into the business of Networking and Software Solution for the companies. The petitioner is having interest in Astrology and out of his interest only keeps on attending classes on the aforesaid subject all around India whenever given a chance. That the petitioner came into contact with one Sh. Vijay Verma, who is a resident of Jammu and a professional in the field of Astrology. After both petitioner and Vijay Verma developed friendship, the petitioner was invited by the said Vijay Verma to attend the classes on the subject of astrology in his institute in Jammu. The petitioner thereafter went to attend a short term course on Astrology in Jammu where the petitioner was introduced to respondent No.1 by Vijay Verma, who was the co-brother of respondent No.1. That as the ward of respondent No.1 failed to crack the entrance of MBBS course, respondent No.1 and his co- brother namely Vijay Verma asked the petitioner to help the ward of respondent No.1 to get admission in MBBS course. The co-brother being the teacher of the petitioner and under obligation, without any monetary benefits, the petitioner referred respondent No.1 to his friend namely Sh. Shyam Garg for admission of the ward of respondent No.1 and Sh. Sham Garg referred the petitioner to Sh. Shailesh Chobhey being an education consultant. That respondent No.1 himself contacted the said Shailesh Chobey in Pune on telephone and after respondent No.1 got satisfied, the petitioner along with respondent No.1 and his co-brother Sh. Vijay Verma went to Pune to meet Shailesh Choubey regarding the admission of his ward in MBBS course in DY Patil, Pune College but despite all efforts the college authorities refused to admit the ward of respondent No.1 as the admission process was over and moreover the ward of respondent No.1 had failed to crack the preliminary examination of MBBS. That thereafter the petitioner came back to Delhi and respondent 561-A Cr.P.C. No.23/2007 Page 2 of 15 3 No.1 along with his co-brother went back to Jammu. Respondent No.1 himself always remained in contact with said Shailesh Choubey and respondent No.1 proposed Shailesh Choubey for getting the admission of his ward in the same academic year after paying the donation to the management of the college. Shailesh Choubey told respondent No.1 that the only possibility of getting the admission of the ward of respondent No.1 is in DY Patil Medical College, Kolhapur after paying the donation and for the same purpose Sh. Kailash Choubey introduced respondent No.1 to one Sh. I. B. Pandey. Upon this, respondent No.1 along with his co-brother and cash reached at Pune and from there by road went to DY Patil Medical College, Kolhapur, where they met Sh. I.B. Pandey and even the college authorities of DY Patil Medical College, Kolhapur, refused to give admission to the ward of respondent No.1 in MBBS course as the same not possible. Thereafter, all aforesaid persons i.e. respondent No.1, Vijay Verma, ward of respondent No.1 namely Sh. Shourab Mengi and Sh. I. B. Pandey came back to Pune and Sh. Vijay Verma flew back to Delhi with an opinion of getting the admission in next academic year but respondent No.1 insisted on getting the admission in the same academic year and remained in Pune. Thereafter, respondent No.1 along with I. B. Pandey and one Shyam Garg flew to M/s Kempegowda Institute of Medical Sciences, Banglore and respondent No.1 personally after satisfying himself handed over the donation amount of Rs.22, 50,000/- in cash to the Chairman of the College in his room in the presence of his ward Shourab Mengi. It is stated that the Chairman thereafter himself issued a reservation letter for the seat of the ward of respondent No.1 in MBBS course and respondent No.1 came back to Jammu along with his ward and again went back to Banglore on the scheduled date of admission and found that the name of the ward was not figuring in the batch for the current year. On this, respondent No.1 asked 561-A Cr.P.C. No.23/2007 Page 3 of 15 4 for refund of the donation amount but as the petitioner failed to produce any receipt of the donation amount, the concerned College Management refused to return the donation amount.
3. It is further stated that the petitioner was contacted by respondent No.1 as the initial reference was given by the petitioner only. The petitioner contacted his friend Shyam Gard and Shailesh Choubey, but after no results came out, the petitioner on the request of his teacher/friend Sh. Vijay Verma left for Banglore and made all possible efforts to get the donation amount back as respondent No.1 failed to produce any receipt of the donation amount and the factum of deposit of the donation was denied by the College Management being illegal. That the petitioner along with respondent No.1 contacted Shailesh Choubey to get the refund of the donation amount and Shailesh Choubey promised to return the said amount within a period of three months after getting the said amount adjusted for the admission for some other student. Thereafter, the petitioner and respondent No.1 came to Delhi and respondent No.1 started threatening the petitioner for the said financial loss. The petitioner at the request of the co-brother of respondent no.1 being his teacher and after getting confirmation from his friend Shyam Garg, that the payment of donation amount will be refunded in two months issued two post dated cheques amounting Rs.10,00,000/- each bearing Nos.004068 and 004069 dated 31.03.2006 . It was assured by respondent No.1 that the cheques of the petitioner will be returned by respondent No.1 after the receipt of payment from Sh. Shailesh Choubey or his representative namely Shayam Garg of Inder Bhushan Pandey. An agreement was signed, witnessed and executed at New Delhi for the said purpose between the petitioner and respondent No.1.
4. It is stated that petitioner thereafter received a cheque amounting Rs.20,00,000/- issued by Sh. I. B. Pandey on 28.02.2006 bearing 561-A Cr.P.C. No.23/2007 Page 4 of 15 5 No.969997 drawn on ICICI Bank Ltd. Pune Branch dated 30.04.2006 and the petitioner immediately contacted respondent No.1 to accept the said cheques and to return the cheques of the petitioner as per the agreement and commitment. The petitioner also directed his banker on 06.03.2006 to stop the payment of the cheques in question. Respondent No.1 never came to collect the said cheque of I. B. Pandey and Sh. Vijay Verma brother of respondent No.1 again requested the petitioner to post the cheque of I. B. Pandey and promised the petitioner to return his cheques immediately after receipt of the same. The petitioner again on the words of the co-brother of respondent No.1 dispatched the said cheque along with a covering letter through registered A/D on 12.04.2006 to respondent No.1. Respondent No.1, however, deceitfully withheld the said cheques of the petitioner and thereafter presented the cheques and the same were returned to respondent No.1 with the remarks Stop Payment by the bankers of the petitioner. Respondent No.1 served the petitioner with statutory legal notice under Section 138 NI Act for dishonor of above stated cheques. The petitioner again contacted respondent No.1 and respondent No.1 apologized and promised to return the cheques but this never happened. Respondent No.1 against presented the cheques and the same were returned to respondent No.1 with the remarks Stop Payment, upon which respondent No.1 again served the petitioner with the second legal notice dated 04.09.2006 under Section 138 NI Act. That as per the averment made by respondent No.1 in para No.9 of complaint, it is stated that respondent No.1 had also initiated a criminal complaint under Section 138 NI Act against Sh. Inder Bhushan Pandey for the cheques issued by him. The trial Court took cognizance against the accused Inder Bhushan Pandey only under Section 138 N.I. Act and the summons were issued on 17.10.2006.
561-A Cr.P.C. No.23/2007 Page 5 of 15 65. The petitioner has assailed the criminal complaint as well as summoning order, inter alia, on the ground that summoning order is illegal, unwarranted and uncalled for as the cause of action can arise in favor of respondent No.1 for filing of the criminal complaint only, once after the legal notice for the dishonor of the cheques bearing Nos.004068 & 004069 dated 31.03.2006 and no subsequent presentation or dishonor of the same cheques or issue of second legal notice creates a new/fresh cause of action for filing the present criminal complaint in favour of respondent No.1. Once the respondent No.1 had accepted the fresh cheques as per the agreement from Sh. I. B. Pandey against the discharge of the liability, no cause of action exists against the petitioner. Issue of summons against the petitioner without any cause of action is abuse of process of law moreover on the grounds of the parity when two criminal complaints of same nature are under trial before one Court summoning order under different section against the two accused persons are also bad in the eye of law. The petitioner had issued the cheques as surety only and under coercion. There was no legal liability in discharge of which the petitioner had issued the aforesaid cheques and hence no provisions of Negotiable Instrument Act are attracted. The agreement is void abinitio as the agreement itself is illegal, the respondent himself has stated that the amount was paid in cash for getting admission in an illegal manner by giving illegal gratification termed as donation to the Chairman of the college and hence summoning order under Section 138 of NI Act and 420 RPC against the petitioner is wrong in the eye of law. That on the face of the complaint and the material produced by respondent No.1, it is apparent that none of the alleged offences of cheating took place at Jammu, the entire transaction had taken place at Pune or at Banglore. Even there is no specific averment in the criminal complaint filed by respondent No.1 that how the jurisdiction of the Court in Jammu is made 561-A Cr.P.C. No.23/2007 Page 6 of 15 7 out. There is no specific averment as to how the petitioner has caused any unlawful gain to himself and unlawful loss to respondent No.1. On a contrary, the petitioner had always supported the respondent No.1 to get the amount refunded and if the petitioner had a dishonest intention or had cheated the respondent No.1, then Inder Bhushan Dubey must had not admitted his liability of Rs.20,00,000/-. The petitioner had got the cheques issued in favour of respondent No.1 from Inder Bhushan Pandey as per the agreement but it was respondent No.1 who had not completed the terms of agreement by returning the cheques of the petitioner and has caused unlawful gain to himself and loss to the petitioner.
6. With the afore mentioned submissions, petitioner has prayed for quashing of criminal complaint filed by respondent No.1 under Section 138 of Negotiable Instrument Act and 420 RPC pending trial in the Court of learned Munsiff Reasi.
7. On the other hand, learned counsel for respondent has submitted that respondent after having been cheated by Sh. Rajneesh Garg, who induced the respondent to pay a sum of Rs.22.50 lacs in a well knit criminal conspiracy to two representatives of Mr. Shailesh Chobey i.e. Sham Garg and Inder Bhushan Pandey for getting the son of the respondent admitted in Kempegoda Institute of Medical Sciences, Bangalore, with the assurance that the Admission Letter would be got issued and actually the admission letter was issued and was provided to the respondent for admission of his son in the aforesaid institute and having received the letter dated 05.10.2005, the respondent got satisfied that in the Management & NRI Quota the admission for MBBS course was shown to be confirmed but the son of the respondent namely Sorab Mengi was not admitted despite the fact that the amount was paid by the respondent which stood received by Inder Bhushan Pandey at the instance of Rajneesh Garg. That petitioner Rajneesh Garg by entering into an 561-A Cr.P.C. No.23/2007 Page 7 of 15 8 agreement even assured the respondent that the respondent would be paid the money back, as a consequence whereof, two cheques of Rs.10 lacs each being the subject matter of complaint were given by him and it was also assured by Rajneesh Garg that if the respondent does not receive the money from Shailesh Chobey latest by 31.03.2006, he would be within his right to present the cheques issued by the petitioner for realizing the amount. Since the respondent and Rajneesh Garg executed the agreement at Jammu and the cheques were received by the respondent at Reasi and were presented at Reasi and the Memo disclosing dishonouring of the cheques were received by the respondent at Reasi, therefore, respondent in view of cause being accrued to him at Reasi. That respondent states that the cheques which was issued by Inder Bhushan Pandey was also dishonoured and for that matter also, the respondent filed complaints against both Rajneesh Garg and Inder Bhushan Pandey. It is further stated that on the date of filing of the complaint against Rajneeh Garg and even when the notice dated 04.09.2006 which was issued by Mr. Ajay Kumar Gandotra, Advocate, the respondent was not aware of the notice dated 23.06.2006 stated to have been issued by Sheikh Altaf Hussain, Advocate. It is stated that the Court at Reasi had also taken cognizance of the commission of offence by the accused Rajneesh Garg under Section 420 RPC.
8. Learned counsel for respondent prayed that the instant petition filed by the petitioner be dismissed out rightly. It is also prayed that both complaints one filed against Rajneesh Garg and another against Inder Bhushan Pandey, which are pending before the Court of learned Munsiff, Reasi, be transferred to any Court in Jammu, which would facilitate and expedite the disposal of both the cases.
9. Heard learned counsel for both sides, gone through the file and considered the law on the subject.
561-A Cr.P.C. No.23/2007 Page 8 of 15 910. From the arguments of counsel for the parties and from the facts of case, it is evident the only question is to be decided as to whether cause of action will arise in favour of complainant for filing of the criminal complaint u/s 138 of NI Act only once after the cheque in question is dishonored and the legal notice for the dishonour of the cheque is given to accused and statutory period as per Act is expired; and no subsequent presentation of same cheque again and dishonour of the cheque and again issuance of second legal notice creates a new/fresh cause of action for filing the criminal complaint or whether the action of the complainant was time-barred Under Section 138(b) of the Negotiable Instruments Act, 1881 (NI Act). The Section 138 of the NI Act stipulates three distinct conditions, which must be satisfied before dishonour of the cheque can constitute an offence and becomes punishable. These are-
1. The cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
2. The payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.
3. The drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Fulfilment of those three conditions constitutes an offence Under Section 138 and it can then be said that an offence under the said section has been committed by the person issuing the cheque.
561-A Cr.P.C. No.23/2007 Page 9 of 15 1011. Now this controversy has finally been settled by Hon'ble Apex court in 2012 (4) CRIMES 98 in case titled Mrs. Leather v. S. Palianiappan and another, wherein it is held as under :-
"22. That brings us to the question whether an offence punishable under Section 138 can be committed only once as held by this Court in Sadanandan Bhadran's case (supra). The holder of a cheque as seen earlier can present it before a bank any number of times within the period of six months or during the period of its validity, whichever is earlier. This right of the holder to present the cheque for encashment carries with it a corresponding obligation on the part of the drawer to ensure that the cheque drawn by him is honoured by the bank who stands in the capacity of an agent of the drawer vis-à-vis the holder of the cheque. If the holder of the cheque has a right, as indeed is in the unanimous opinion expressed in the decisions on the subject, there is no reason why the corresponding obligation of the drawer should also not continue every time the cheque is presented for encashment if it satisfies the requirements stipulated in that clause (a) to the proviso to Section 138. There is nothing in that proviso to even remotely suggest that clause (a) would have no application to a cheque presented for the second time if the same has already been dishonoured once. Indeed if the legislative intent was to restrict prosecution only to cases arising out of the first dishonour of a cheque nothing prevented it from stipulating so in clause (a) itself. In the absence of any such provision a dishonour whether based on a second or any successive presentation of a cheque for encashment would be a dishonour within the meaning of Section 138 and clause (a) to proviso thereof. We have, therefore, no manner of doubt that so long as the cheque remains unpaid it is the continuing obligation of the drawer to make good the same by either arranging the funds in the account on which the cheque is drawn or liquidating the liability otherwise. It is true that a dishonour of the cheque can be made a basis for prosecution of the offender but once, but that is far from saying that the holder of the cheque does not have the discretion to choose out of several such defaults, one default, on which to launch such a prosecution. The omission or the failure of the holder to institute prosecution does not, therefore, give any immunity to the drawer so long as the cheque is dishonoured within its validity period and the conditions precedent for prosecution in terms of the proviso to Section 138 are satisfied.
23. Coming then to the question whether there is anything in Section 142(b) to suggest that prosecution based on subsequent or successive dishonour is impermissible, we need only mention that the limitation which Sadanandan Bhadran's case (supra) reads into that provision does not appear to us to arise. We say so because while a complaint based on a default and notice to pay must be filed within a period of one month from the date the cause of action accrues, which implies the date on which the period of 15 days granted to the drawer to arrange the payment expires, there is nothing in Section 142 to suggest that expiry of any such limitation would absolve him of his criminal liability should the cheque continue to get dishonoured by the bank on subsequent presentations. So long as the 561-A Cr.P.C. No.23/2007 Page 10 of 15 11 cheque is valid and so long as it is dishonoured upon presentation to the bank, the holder's right to prosecute the drawer for the default committed by him remains valid and exercisable. The argument that the holder takes advantage by not filing a prosecution against the drawer has not impressed us. By reason of a fresh presentation of a cheque followed by a fresh notice in terms of Section 138, proviso (b), the drawer gets an extended period to make the payment and thereby benefits in terms of further opportunity to pay to avoid prosecution. Such fresh opportunity cannot help the defaulter on any juristic principle, to get a complete absolution from prosecution.
24. Absolution is, at any rate, a theological concept which implies an act of forgiving the sinner of his sins upon confession. The expression has no doubt been used in some judicial pronouncements, but the same stop short of recognizing absolution as a juristic concept. It has always been used or understood in common parlance to convey "setting free from guilt" or "release from a penalty". The use of the expression "absolution" in Sadanandan Bhadran's case (supra) at any rate came at a time when proviso to Section 142(b) had not found a place on the statute book. That proviso was added by the Negotiable Instruments (Amendment andMiscellaneous Provisions) Act, 2002 which read as under:
"Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period."
25. The Statement of Objects and Reasons appended to the Amendment Bill, 2002 suggests that the introduction of this proviso was recommended by the Standing Committee on Finance and other representatives so as to provide discretion to the Court to waive the period of one month, which has been prescribed for taking cognizance of a case under the Act. This was so recognised judicially also by this Court in Subodh S. Salaskar v. Jayprakash M. Shah & Anr. (2008) 13 SCC 689 where this Court observed:
"11. The [Negotiable Instruments] Act was amended in the year 2002 whereby additional powers have been conferred upon the court to take cognizance even after expiry of the period of limitation by conferring on it a discretion to waive the period of one month.
xx xx xx xx
24...The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto. The Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay..."561-A Cr.P.C. No.23/2007 Page 11 of 15 12
26. The proviso referred to above now permits the payee to institute prosecution proceedings against a defaulting drawer even after the expiry of the period of one month. If a failure of the payee to file a complaint within a period of one month from the date of expiry of the period of 15 days allowed for this purpose was to result in 'absolution', the proviso would not have been added to negate that consequence. The statute as it exists today, therefore, does not provide for 'absolution' simply because the period of 30 days has expired or the payee has for some other reasons deferred the filing of the complaint against the defaulter.
27. It is trite that the object underlying Section 138 of the Act is to promote and inculcate faith in the efficacy of banking system and its operations, giving credibility to Negotiable Instruments in business transactions and to create an atmosphere of faith and reliance by discouraging people from dishonouring their commitments which are implicit when they pay their dues through cheques. The provision was intended to punish those unscrupulous persons who issued cheques for discharging their liabilities without really intending to honour the promise that goes with the drawing up of such a negotiable instrument. It was intended to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case the cheque was dishonoured and to safeguard and prevent harassment of honest drawers. (See Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. (2006) 3 SCC 658, C.C. Alavi Haji v. Palapetty Muhammed & Anr. (2007) 6 SCC 555 and Damodar S. Prabhu v. Sayed Babulal H. (2010) 5 SCC 663). Having said that, we must add that one of the salutary principles of interpretation of statutes is to adopt an interpretation which promotes and advances the object sought to be achieved by the legislation, in preference to an interpretation which defeats such object. This Court has in a long line of decisions recognized purposive interpretation as a sound principle for the Courts to adopt while interpreting statutory provisions. We may only refer to the decisions of this Court in New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar (AIR 1963 SC 1207), where this Court observed:
"It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the Court would be justified in assuming that the Legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its power invalid."
28. Reference may also be made to the decision of this Court in Deputy Custodian, Evacuee Property v. Official Receiver (AIR 1965 SC 951), where this Court observed:
"The rules of grammar may suggest that when the section says that the property is evacuee property, it prima facie indicates that the 561-A Cr.P.C. No.23/2007 Page 12 of 15 13 property should bear that character at the time when the opinion is formed. But Mr. Ganapathy Iyer for the appellants has strenuously contended that the construction of s. 7(1) should not be based solely or primarily on the mechanical application of the rules of grammar. He urges that the construction for which Mr. Pathak contents and which, in substance, has been accepted by the High Court, would lead to very anomalous results; and his arguments is that it is open to the Court to take into account the obvious aim and object of the statutory provision when attempting the task of construing its words. If it appears that the obvious aim and object of the statutory provisions would be frustrated by accepting the literal construction suggested by the respondent, then it may be open to the Court to enquire whether an alternative construction which would serve the purpose of achieving the aim and object of the Act, is reasonably possible."
29. The decision of this Court in Nathi Devi v. Radha Devi (2005) 2 SCC 271, reiterates the rule of purposive construction in the following words:
"Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted."
30. To the same effect is the decision of this Court in S.P. Jain v. Krishan Mohan Gupta (1987) 1 SCC 191, where this Court observed:
"We are of the opinion that law should take a pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabilities of technology and life- style of the community. It is well settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act. We agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltd's case (supra) that legislative futility is to be ruled out so long as interpretative possibility permits."
31. Applying the above rule of interpretation and the provisions of Section 138, we have no hesitation in holding that a prosecution based on a second or successive default in payment of the cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by a statutory notice and a failure to pay had not been launched. If the entire purpose underlying Section 138 of the Negotiable Instruments Act is to compel the drawers to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or for any other similar reason. There is in our 561-A Cr.P.C. No.23/2007 Page 13 of 15 14 opinion no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time.
32. The controversy, in our opinion, can be seen from another angle also. If the decision in Sadanandan Bhadran's case (supra) is correct, there is no option for the holder to defer institution of judicial proceedings even when he may like to do so for so simple and innocuous a reason as to extend certain accommodation to the drawer to arrange the payment of the amount. Apart from the fact that an interpretation which curtails the right of the parties to negotiate a possible settlement without prejudice to the right of holder to institute proceedings within the outer period of limitation stipulated by law should be avoided we see no reason why parties should, by a process of interpretation, be forced to launch complaints where they can or may like to defer such action for good and valid reasons. After all, neither the courts nor the parties stand to gain by institution of proceedings which may become unnecessary if cheque amount is paid by the drawer. The magistracy in this country is over-burdened by an avalanche of cases under Section 138 of Negotiable Instruments Act. If the first default itself must in terms of the decision in Sadanandan Bhadran's case (supra) result in filing of prosecution, avoidable litigation would become an inevitable bane of the legislation that was intended only to bring solemnity to cheques without forcing parties to resort to proceedings in the courts of law. While there is no empirical data to suggest that the problems of overburdened magistracy and judicial system at the district level is entirely because of the compulsions arising out of the decisions in Sadanandan Bhadran's case (supra), it is difficult to say that the law declared in that decision has not added to court congestion.
33. In the result, we overrule the decision in Sadanandan Bhadran's case (supra) and hold that prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act. The reference is answered accordingly. The appeals shall now be listed before the regular Bench for hearing and disposal in light of the observations made above."
12. So in view of above law, the grounds taken in the petition that complaint was not maintainable after issuance of second notice, is not tenable. Further both cheques in question of Rs.10 lakh each are dated 31.3.2006; these were dishonored firstly on 20.4.2006 with endorsement PAYMENT STOPPED and these were again presented with bank for honour, but again these cheques were dishonored vide memo dated 22.8.2006 with endorsement PAYMENT STOPPED. So cheques were presented two times within six month from date of issuance of cheques in its validity 561-A Cr.P.C. No.23/2007 Page 14 of 15 15 period. All the factual narrations in this petition cannot be considered in this petition; these are required to be proved by petitioner before Court below during trial. Petitioner has not denied that both cheques do not bear his signatures. Thus, order of Court below in taking cognizance does not suffer from any infirmity of law.
13. This petition deserves dismissal, which is dismissed accordingly. Interim direction, if any, is vacated. Trial court file is sent back. All the MPs are also disposed of accordingly.
(Sanjay Kumar Gupta) Judge Jammu, 28.09.2017 Narinder 561-A Cr.P.C. No.23/2007 Page 15 of 15