Punjab-Haryana High Court
Vijay Singla And Others vs Dharam Pal on 19 May, 2011
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Misc. No. M-690 of 2010 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M-690 of 2010
DATE OF DECISION: 19.5.2011
Vijay Singla and others ..........Petitioners
Versus
Dharam Pal ..........Respondent
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. Amit Parashar, Advocate
for the petitioners.
None for the respondent.
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DAYA CHAUDHARY, J.
The present petition under Section 482 Cr.P.C. has been filed on behalf of Vijay Singla, Anjali, Ankur Singla and Dibya for quashing of complaint No. 5911T dated 6.9.2009 (Annexure P-1)filed by the respondent under Section 138 of the Negotiable Instruments (Amendment & Miscellaneous Provisions Act, 2002) Act, 1881 (hereinafter referred to as 'the Act') pending before the JMIC, Patiala and summoning order dated 7.2.2006 and all subsequent proceedings arising therefrom.
While issuing notice of motion on 12.1.2010, the following contention of learned counsel for the petitioners was recorded:-
"This petition has been filed under Section 482 Cr.P.C. for quashing complaint No. 5911T dated 6.9.2009. It transpires that cheque was issued by Sh. Bhagwati Parshad Singla. The said person, however, died soon after issuing the Crl. Misc. No. M-690 of 2010 (2) cheque. The complaint has been made against the legal heirs which, in the contention of learned counsel, is not maintainable. In this context, learned counsel has relied on 2006 (4) Criminal Court Cases, Smt. Kamla and others Vs. C.P. Bhardwaj.
Learned counsel has also relied on 2009 (1) RCR (Criminal) 46, wherein, it has been held that cheque issued is valid for six months. If it is presented after expiry of validity to the drawee bank, it expires. Accused is not liable under Section 138 of the Negotiable Instruments Act."
Learned counsel for the petitioners contends that the cheque in dispute was issued by Sh. Bhagwati Parshad Singla, who died after issuance of the said cheque and the complaint has been filed against the legal heirs, which is not maintainable. Learned counsel for the petitioners also submits that the cheque is valid only for six months and after expiry of validity date, accused cannot be held liable under Section 138 of the Act. Learned counsel has also relied upon the judgment of Hon'ble the Apex Court in Shri Ishar Alloy Steels Ltd. Vs. Jayaswals NECO Ltd. 2001 (1) RCR (Criminal) 834 and of this Court in Smt. Kamla & Ors Vs. C.P. Bhardwaj 2006 (4) Criminal Court Cases 203 (P&H) and Wangyuth Konyak Vs. M/s Yadav Sales 2009 (1) RCR (Criminal) 46.
None appears for respondent inspite of service. Heard the arguments advanced by learned counsel for the petitioners and have also perused the contents of the complaint as well as summoning order and other documents available on record.
As per complaint, Sh. Bhagwati Parshad Singla (now deceased) issued a cheque bearing No. MCA/U-573347 dated 9.1.2005 for Rs. One lac drawn from Account No. 6097, payable at State Bank of Patiala, Sector 7-C, Chandigarh in favour of the respondent in lieu of Crl. Misc. No. M-690 of 2010 (3) outstanding liability to repay the loan to the respondent. The said cheque was presented in the Bank on 6.7.2005 and the same was sent for clearance on 11.7.2005, which was returned on 11.7.2005, with the Memo of "Exceed Arrangements". On receiving the unpaid cheque, complainant contacted the petitioners and complained them about the return of the cheuqe as unpaid as Sh. Bhagwati Parshad Singla died on 7.6.2005. When the petitioners failed to pay the disputed amount, a legal notice was sent by the respondent on 4.8.2005 to the petitioners to pay the disputed amount within a period of 15 days from the date of receipt of the notice. After issuance of legal notice also, the petitioners failed to pay the disputed amount and thereafter the present complaint has been filed by the respondent, in which the petitioners have been summoned. The complaint as well as the summoning order is the subject matter of challenge in the present petition.
The complaint as well as summoning order has been challenged on the ground that the petitioners cannot be held liable being the legal heirs of the person, who has issued the cheque as the proceedings under Section 138 of the Act cannot be initiated against the LRs of the person who has issued the cheque and the complaint is liable to be quashed on this ground alone. It has also been contended by learned counsel for the petitioners that there is no provision under the Act to cover such situation and the provisions are totally silent. It is also the ground that the validity of the cheque was six months and the same had expired as the cheque in dispute was not presented within a period of six months before the Bank and the same was presented beyond the period of expiry of six months and the summoning order has been passed in a mechanical manner.
Admittedly, cheque in dispute was presented before the bank after expiry of six months and the person, who issued the cheque had Crl. Misc. No. M-690 of 2010 (4) already expired. As per provisions of Section 138 of the Act, term " Bank"
used in Section 138 of the Act, the cheque is to be presented to the drawee bank within the stipulated period of six months. The "Bank" in the case in hand would be the drawee bank and there is not dispute that cheque in dispute was presented before the Bank after expiry of six months when it was not valid and the same was "outdated". Thus, the provisions of Section 138 of the Act cannot be attracted. This view has been supported by the Hon'ble Apex Court also in the case of Shri Ishar Alloy Steels Ltd. (supra). Reference to para Nos.6 (relevant), 7,8,9 & 10 is required to be made, which are reproduced as under:-
6."Before adverting to the various provisions of law as applicable in the case, it has to be kept in mind that the law relating to negotiable instruments is the law of the commercial worlds which was enacted to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another.
In the absence of such instruments, the trade and commerce activities were likely to be adversely affect as it was not practicable for the trading community to carry on with it the bulk of the currency in force. The introduction of negotiable instruments owes its origin to the bartering system prevalent in the primitive society. The negotiable instruments are, in fact, the instruments of credit being convertible on account of the legality of being negotiated and thus easily passable from one hand to another. The source of Indian law relating to such instruments is admittedly the English common law. The main object of the Act is to legalise the system by which instruments contemplated by it could pass from hand to hand by Crl. Misc. No. M-690 of 2010 (5) negotiation lie any other goods. The purpose of the Act was to present an orderely and authoritative statement of the leading rules of law relating to the negotiable instruments. The Act intends to legalise the system under which claims upon mercantile instruments could be equated with ordinary goods passing from hand to hand. To achieve the objective of the Act, the legislature in its wisdom thought it proper to make provision in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special procedure in case the obligation under the instrument was not discharged. It has always to be kept in mind that Section 138 of the Act creates offence and the law relating to the penal provisions has to be interpreted strictly so that no- one can ingeniously or insidiously or guilefully or strategically be prosecuted.
7. It has further to be noticed that to make an offence under Section 138 of the Act, it is mandatory that the cheque is 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. It is the cheque drawn which has to be presented to "the bank" within the period specified therein. When a postdated cheque is written or drawn, it is only a bill of exchange. The post dated cheque become a cheque under the Act on the date which is written on the said cheque and the six months' period has to be reckoned, for the purposes of Section 138 of the Act, from the said date.
8. Section 138 provides that where any cheque drawn by a person on an account maintained him with a "banker" for payment of any amount of money to another person from out Crl. Misc. No. M-690 of 2010 (6) of that account for the discharge, in whole or in part, of any debt or other liability, is returned by 'the bank" unpaid, because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence punishable with imprisonment as prescribed therein subject to the conditions mentioned in caluses (a), (b) and (c) of the proviso. Section 3 of the Act defines the "banker" to include any person acting as a banker and any post office savings bank. Section 72 of the Act provides that cheque must, in order to charge the drawer, be presented at the bank upon which it is drawn before the relations between the drawer and his banker has been altered to the prejudice of the drawer.
9. The use of the words "a bank" and the "the bank" in the section is an indicator of the intention legislature. The former is an indirect (sic indefinite) article and the latter is prefixed by a direct (sic definite) article. If the legislature intended to have the same meanings for "a bank" and "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is prefixed by the indefinite articles "a" and the word "bank" where the cheque is intended to be presented under Section 138 is prefixed by the definite article "the". The same section permits a person to issue and cheque on an account maintained by him which "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is Crl. Misc. No. M-690 of 2010 (7) contemplated by "the bank" meaning thereby where the person issuing the cheque has an account. "The" is the word used before nouns, with a specifying or particularizing effect as opposed to the indefinite or generalizing force of "a" or "an. It determined what particular thing is meant; that is, what particular thing we are to assume to be meant. "The" is always mentioned to denote a particular thing or a person.
"The would, therefore, refer implicitly to a specified bank and not any bank. "The nak" referred to in clause (a) to the proviso to Section 138 of the Act would mean the drawee bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued.
10. It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued. The payee to cheque has the option to present the cheque in any bank including the collecting bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque in the drawee or payee bank on which the cheque is drawn within the period of six months from the date on which it is shown to have been issued. In other words a cheque issued by (A) in favour of (B) drawn in a bank named (C) where the drawer has an account can be presented by the payee to the bank upon which it is drawn i.e. (C) bank within a period of six months or present it to any other bank for collection of the cheque amount provided such other bank including the collecting bank presented the cheque for collection to (C) bank. The non-presentation of the cheque to Crl. Misc. No. M-690 of 2010 (8) the drawee bank within the period specified in the Section would absolve the person issuing the cheque of his criminal liability under Section 138 of the Act, who shall otherwise may be liable to pay the cheque amount to the payee in a civil action initiated under the law. A combined reading of Section 3,72 and 138 of the Act would leave no doubt in our mind that the law mandated the cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely the collecting bank of the payee."
In view of the facts mentioned above as well as settled position of law, the petitioners cannot be held liable being the legal heirs of the drawee of the cheque and as such the petition is allowed and complaint No. 5911T dated 6.9.2009 (Annexure P-1)filed by the respondent under Section 138 of the Negotiable Instruments (Amendment & Miscellaneous Provisions Act, 2002) Act, 1881 pending before the JMIC, Patiala and summoning order dated 7.2.2006 and all subsequent proceedings arising therefrom are quashed.
19.5.2011 (DAYA CHAUDHARY) pooja JUDGE
Note:-Whether this case is to be referred to the Reporter .......Yes/No