Allahabad High Court
Rahisuddin Saifi vs State Of U.P. And Another on 22 January, 2020
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 28 Case :- APPLICATION U/S 482 No. - 33953 of 2013 Applicant :- Rahisuddin Saifi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Daga,Sandeep Kumar Srivastava Counsel for Opposite Party :- Govt. Advocate,V.P. Gupta Hon'ble Rajeev Misra,J.
Heard Mr. Amit Daga, learned counsel for applicants and learned A.G.A. for State. In spite of service of notice, no one appears on behalf of opposite party No. 2.
This application under section 482 Cr. P. C. has been filed challenging entire proceedings of Complaint Case No. 145 of 2013 of 201 (Javed Akhtar Vs. Rahisuddin Saifi), under section 138 N.I. Act, P.S. Amroha, District J.P. Nagar pending in the Court of Judicial Magistrate/Additional Civil Judge (JD)-IInd, Amroha.
It transpires from record that applicant gave a cheque dated 22.12.2012 valued at Rs. 3 lac bearing No. 775541. Aforesaid cheque was presented by opposite party No. 2 in his Bank, but the same was not encashed on the ground that Account holder i.e. applicant has stopped payment. Accordingly, intimation to this effect was sent by Bank to opposite party No. 2. Upon receipt of aforesaid information, opposite party No. 2 gave a notice through his counsel demanding payment of the amount payable under the disputed cheque. However, amount under the disputed cheque was not paid. Consequently, opposite party No. 2 has initiated above mentioned present proceedings under Section 138 N.I. Act. Feeling aggrieved by the aforesaid proceedings, applicant has now approached this Court by means of present application under Section 482 Cr. P. C. Learned counsel for applicant submits that under the scheme of Section 138 N.I. Act, proceedings can be initiated on one of two exigencies provided therein namely (a) there is insufficient funds to honour the cheque (b) or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
He, therefore, submits that since stop payment is a contingency, which is not contemplated in the scheme of Section 138 N.I. Act, therefore, criminal proceedings initiated by opposite party No. 2 by way of above mentioned complaint case under Section 138 N.I. Act are liable to be quashed.
Learned counsel for applicant has referred to the decision of Apex Court in the case of Raj Kumar Khuran Vs. State of (NCT of Delhi) and another, reported in 2009 (7) Scale 55, wherein following has been observed in paragraphs 10, 11 and 12, which are reproduced herein under:-
" 10. A bare perusal of the aforementioned provision would clearly go to show that by reason thereof a legal fiction has been created. A legal fiction, as is well known, although is required to be given full effect, has its own limitations. It cannot be taken recourse to for any purpose other than the one mentioned in the statute itself.
In state of A.P. And Anr. V. A.P. Pensioners Association and Ors. [(2005) 13 SCC 161], this court held:
"...In other words, all the consequences ordinarily flowing from a rule would be given effect to if the rule otherwise does not limit the operation thereof. If the rule itself provides a limitation on its operation, the consequences flowing from the legal fiction have to be understood in the light of the limitations prescribed. Thus, it is not possible to construe the legal fiction as simply as suggested by Mr. Lalit."
11. Section 138 of the act moreover provides for a penal provision. A penal provision created by reason of a legal fiction must receive strict construction. [see R. Kalyani v. Janak C. Mehta and Ors. (2009) 1 SCC 516 and DCM Financial Services Ltd. v. J.N. Sareen and Anr. (2008) 8 SCC 1]. Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such non-payment may either be: (i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
Before a proceeding thereunder is initiated, all the legal requirements therefor must be complied with. The court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with.
The parameters for invoking the provisions of section 138 of the act, thus, being limited, we are of the opinion that refusal on the part of the bank to honour the cheque would not bring the matter within the mischief of the provisions of section 138 of the act.
12. The court while exercising its jurisdiction for taking cognizance of an offence under section 138 of the act was required to consider only the allegations made in the complaint petition and the evidence of the complainant and his witnesses, if any. It could not have taken into consideration the result of the complaint petition filed by the respondent no. 2 or the closer report filed by the superintendent of police in the first information report lodged by the appellant against him."
Learned A.G.A. could not dispute the proposition of law laid down in above noted case. It is thus established that dispute cheque could not be encashed on the ground of stop payment prayed by applicant. Thus ingredients of Section 138 N.I. Act are not satisfied in the present case.
In view of above present application succeeds and is allowed.
Entire proceedings of Complaint Case No. 145 of 2013 of 201 (Javed Akhtar Vs. Rahisuddin Saifi), under section 138 N.I. Act, P.S. Amroha District J.P. Nagar pending in the Court of Judicial Magistrate/Additional Civil Judge (JD)-IInd, Amroha are, hereby quashed.
Order Date :- 22.1.2020 HSM