Abhishek Rao vs Of on 27 December, 2023

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Himachal Pradesh High Court

Abhishek Rao vs Of on 27 December, 2023

Bench: Virender Singh

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMMO No. : 66 of 2023 .

                                                    Reserved on : 01.12.2023





                                                    Decided on            : 27.12.2023





    Abhishek Rao                                                          ...Petitioner

                                              Versus




                                                   of
    State of H.P. and another                                             ...Respondents

    Coram

The Hon'ble Mr. Justice Virender Singh, Judge.

rt Whether approved for reporting?1 Yes.

For the petitioner: Mr. Roop Lal Chaudhary, Advocate.

For the respondents: Mr. Mohinder Zharaick and Mr. H.S. Rawat, Additional Advocates General, with Ms. Leena Guleria, Deputy Advocate General, for respondent No. 1.

Mr. J.L. Bhardwaj, Senior Advocate, with Mr. Sanjay Bhardwaj, Advocate, for respondent No. 2.

Virender Singh, Judge.

Petitioner-Abhishek Rao has filed the present petition, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), with a prayer to quash complaint No. 321-3 of 2015, dated 17 th December, 2015, as well as, the proceedings resultant 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

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thereto, which are stated to be pending before the Court of learned Additional Chief Judicial Magistrate, Nalagarh, .

District Solan, H.P. (hereinafter referred to as 'the trial Court').

2. For the sake of convenience, the parties to the present lis are, hereinafter, referred to, in the same of manner, as, they were referred to by the learned trial Court. rt

3. Brief facts, leading to the filing of the present petition, before this Court, may be summed up, as under:

3.1. Complainant-Rakesh Kumar has filed the complaint, under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'NI Act'), against accused-Abhishek Rao, qua cheque No. 491938, dated 31 st August, 2015. The said cheque is stated to be post-dated cheque. The said cheque, when presented for encashment, was returned back with the observation that the person, who has issued the cheque, was not having sufficient funds, in his account. Thereafter, the complainant had issued statutory notice and after waiting for the statutory period, the complaint has been filed, against the accused.

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3.2. The learned trial Court found a case for commission of offence, punishable under Section 138 of .

the NI Act, against the accused and as such, summoning order was passed on 21st March, 2016. After securing the presence of the accused, the learned trial Court found a prima facie case, punishable under Section 138 of the NI of Act, against the accused, as such, notice of accusation was put to him on 20th June 2019.

rt 3.3. When, notice of accusation was put to the accused, he has not pleaded guilty and claimed trial.

Consequently, the complainant was directed to adduce the evidence.

3.4. The evidence of the complainant was closed on 6th April, 2022 and the matter was adjourned for 17 th May, 2022. On that date, the accused did not appear and application for exemption was considered and allowed. The matter was, thereafter, adjourned for 14th June, 2022. The accused again did not appear on 14 th June, 2022, and moved the exemption application, which was allowed for that day and the matter was adjourned for 28th July, 2022.

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3.5. On 28th July, 2022, neither the accused appeared before the Court, nor, any application for .

exemption was moved, on his behalf. As such, his presence was secured by issuing non-bailable warrants.

The said non-bailable warrants remained un-executed till the time, the record was requisitioned, by this Court, in the of instant petition.

4. By way of the present petition, which has been rt filed before this Court, on 14 th November, 2022, the petitioner, has sought the following reliefs:

"(i) That the Complaint No. 321-3 of 2015 dated 17.12.2015 as well as proceedings thereto pending before the Learned Additional Chief Judicial Magistrate Nalagarh, District Solan, H.P., may kindly be quashed.

(ii) Entire record pertaining to the present case, may please be summoned for the kind perusal of this Hon'ble Court.

(iii) Any other order which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the present case, may be passed, in the interest of law and justice."

5. The relief has been sought mainly on the ground that the cheque in question is non-CTS cheque and as per the instructions, dated 18th March, 2013, issued by ::: Downloaded on - 28/12/2023 20:32:35 :::CIS 5 the Reserve Bank of India, the old cheques, i.e. non-CTS cheques, are not acceptable in any of the nationalized .

Banks and only CTS cheques are acceptable, after 18 th March, 2013. In this regard, he has relied upon the instructions, issued by the Himachal Pradesh State Cooperative Bank Ltd., Head Office, The Mall, Shimla - 171 of 001, as well as, the circular of the Reserve Bank of India, dated 18th March, 2013.

6. It is the case of the accused (petitioner) that the complainant was working with the accused (petitioner) and he has stolen the old cheque from the office of the accused and presented the same for encashment.

7. It is his further case that the Bank has firstly dishonoured the cheque due to the reason "drawer signatures differs" and second time, when, the cheque has been presented, the same has been dishonoured for want of "sufficient funds".

8. The accused has sought quashing of the complaint against him, mainly on two grounds: firstly, that the complainant had stolen his cheque from his office and presented the same for encashment and secondly, that the ::: Downloaded on - 28/12/2023 20:32:35 :::CIS 6 cheque in question is non-CTS cheque, as such, the same was not acceptable, in the Bank.

9. The trial of the complaint, pending before the learned trial Court is at the stage of recording the statement of accused, under Section 313 CrPC. At this stage, except the averment with regard to the theft of the of cheque, nothing is there on the file, to give an occasion to accept the said bald statement.

10. There is nothing on the record to enable this Court to draw an inference that the accused had ever lodged any complaint against the complainant, with regard to the alleged theft of the cheque in question. The registration of the FIR or complaint to the police would have helped the accused to assert that the cheque in question was stolen, which was a non-CTS cheque and the same has been presented in order to cheat the accused.

11. When, nothing is there on the file, in this regard, then, the said ground cannot be considered to quash the FIR, that too, while exercising the powers, under Section 482 CrPC. Moreover, the accused could probabilize this defence by adducing the evidence, before ::: Downloaded on - 28/12/2023 20:32:35 :::CIS 7 the learned trial Court, or, by cross-examining the complainant.

12. So far as the another ground, qua the fact that after 18th March, 2013, non-CTS cheques were not acceptable in any of the nationalized Banks in the entire country, is concerned, the main thrust of the accused, in of this regard, is the letter, dated 18th March, 2013, issued by the Reserve Bank of India, which has been addressed to rt the Chairman and Managing Director/Chief Executive Officer All Scheduled Commercial banks including RRBs/ Urban Co-operative Banks/State Co-operative Banks/ District Central Co-operative Banks/Local Area Banks.

13. In terms of the said letter, instructions were issued by the Reserve Bank of India, under the provisions of Section 18 of the Payment and Settlement Systems Act, 2007. The relevant clauses (c) and (d) of the said letter, are reproduced, as under:

"c. All residual non-CTS-2010 cheques with customers will continue to be valid and accepted in all clearing houses [including the Cheque Truncation System (CTS) centers] for another four months up to July 31, 2013, subject to a review in June 2013.

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d. Cheque issuing banks shall make all efforts to withdraw the non-CTS-2010 Standard cheques in circulation before the extended timeline of July 31, 2013 .

by creating awareness among customers through SMS alerts, letters, display boards in branches/ATMs, log- on message in internet banking, notification on the web-site etc."

14. When, the letter itself contains that the above of conditions are subject to review in the month of June, 2013, then, reliance cannot be made solely on this letter.

15. rt As per the circular issued on 15th March, 2021, by the Reserve Bank of India, the CTS has been made applicable from 1st October, 2021. The relevant portion of the said instructions, is reproduced, as under:

"Extension of Cheque Truncation System (CTS) across all bank branches in the country Please refer to the Statement on Developmental and Regulatory Policies dated February 5, 2021 wherein Reserve Bank of India (RBI) has announced pan-India coverage of CTS by bringing all branches of banks in the country under image-based CTS clearing mechanism.

2. The CTS is in use since 2010 and presently covers around 1,50,000 branches. All the erstwhile 1219 non-CTS clearing houses (ECCS centres) have been migrated to CTS effective September 2020. It is, however, seen that there are branches of banks that are outside any formal clearing arrangement and their customers face hardships due to longer ::: Downloaded on - 28/12/2023 20:32:35 :::CIS 9 time taken and cost involved in collection of cheques presented by them.

3. To leverage the availability of CTS and provide uniform customer experience irrespective of location of her/his bank branch, it has been decided to extend CTS across all bank branches in the country. To facilitate this, banks shall have to ensure that all their branches participate in image-based CTS under respective grids by September 30, 2021. They are free to adopt a model of their of choice, like deploying suitable infrastructure in every branch or following a hub & spoke model, etc. and concerned banks shall coordinate with the respective Regional offices rt of RBI to operationalise this.

4. Banks are advised to inform us ([email protected]) the roadmap to achieve pan-India coverage of CTS and submit a status report before April 30, 2021.

5. This directive is issued under Section 10 (2) read with Section 18 of Payment and Settlement Systems Act, 2007 (Act 51 of 2007)."

16. The cheque in question has been issued by the accused from his account, maintained with Punjab National Bank. Even, the Punjab National Bank, vide circular, dated 17th January, 2019, has withdrawn the CTS non-compliant cheques from 1st January, 2019. The relevant portion of the circular, reads, as under:

"Attention of the field functionaries is invited to DBD Circular No. 51/2018 dated 14.08.2018 wherein detailed guidelines in respect of ::: Downloaded on - 28/12/2023 20:32:35 :::CIS 10 revised schedule for withdrawal of CTS non- complaint cheques in clearing process has been circulated. In para-ii of the said circular it was advised that the separate clearing .

session for CTS non-compliant cheques will be discontinued after December 31, 2018. Banks can, however, continue to present such instruments in Express Cheque Clearing System (ECCS) centres.

2. Now, it has been decided that as a one-time measure, Bank would proactively provide CTS of compliant cheque-books to all those customers who still have only Non-CTS cheques in their accounts. This activity would be taken in a phased manner as mentioned below......."

17. rt Even, as per this circular, acceptance of non-

CTS cheques has not been totally discontinued.

18. The learned counsel appearing for the accused could not point out any circular, which prohibits the acceptance of non-CTS cheques on 31st August, 2011.

19. With these observations, there is no occasion for this Court to allow the instant petition. Consequently, the petition is dismissed, so also the pending miscellaneous applications, if any.

20. The accused, through his counsel, is directed to appear before the learned trial Court on 11th January, 2024, at 10.00 a.m. ::: Downloaded on - 28/12/2023 20:32:35 :::CIS 11

21. Send down the record.

( Virender Singh ) Judge December 27, 2023 ( rajni ) of rt ::: Downloaded on - 28/12/2023 20:32:35 :::CIS

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