Jammu & Kashmir High Court - Srinagar Bench
Dr. Sheeha Shah vs Nazir Ahmad Dar on 11 October, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRMC No. 339/2017
C/w
CRMC Nos. 340, 341, 342 of 2017
Date of Order: 11.10.2018
Dr. Sheena Shah v. Nazir Ahmad Dar
Mrs. Zaib-u-Nissa Shah v Nazir Ahmad Dar
Mrs. Faiyaza Sultah v. Nazir Ahmad Dar
Dr. Sumaya Shah v. Nazir Ahmad Dar
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr. Javaid Iqbal, Advocate
For respondent(s): Mr Hilal Ahmad Wani, Advocate
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. These four petitions under Section 561_A Cr. PC, have been filed against a common judgment dated 04.10.2017, delivered in four Appeals by the Court of the learned Sessions Jude, Budgam, whereby the Appeals have been allowed with the direction to the trial Court, by an order of remand, to proceed in accordance with the procedure prescribed under Section 244 Cr. PC. The learned Sessions Court has further directed the trial Court to proceed from the stage of hearing the respondent-accused and allow them to lead defence evidence and thereafter to pass a fresh judgment. It is this judgment of the learned Sessions Judge that has been questioned in these petitions.
2. The learned counsel for the petitioners has argued that the learned Sessions Judge was not required to direct the trial Court to proceed in accordance with the procedure prescribed under Section 244 Cr. PC. It is contended that the trial Court has granted opportunity to the respondent-accused to lead evidence in defence but since no witness was present on the date of hearing fixed by the trial CRMC No. 339/2017 C/w CRMC Nos. 340, 341 & 342 of 2017 Page 1 of 8 Court, therefore, the order of conviction against the respondent-accused has been passed validly. It is also contended that the respondent-accused failed to produce the evidence on the date fixed and no witness was present nor were any steps taken for summoning any witness. In the Memo of Appeal filed by the respondent-accused it is nowhere stated that the trial Court declined to accept the defence evidence on the date of hearing fixed. In these circumstances, the counsel has urged that no prejudice can be said to have been caused to the respondent-accused. The case against the respondent-accused stands proved beyond any shadow of reasonable doubt. The respondent-accused in his statement before the Court has admitted the issuance of cheques and the liability. The respondent-accused, however, denied the receipt of the notice and thus claimed to be tried. The trial Court has committed error of law by passing the order of conviction in the four Appeals as the respondent-accused is to suffer imprisonment only for a period of two years, as the sentence in one case would run concurrently with other cases as well despite the fact that the complaints in all the cases are different and so are the cheques issued by the respondent-accused. This has caused prejudice to the petitioner complainant. The issuance of the cheques and the liability having been admitted, the core requirements of Section 138 of the Negotiable Instruments Act, are satisfied and the only issue for consideration is whether the accused received the notice sent to him by the complainant as required under Section 138 of the Negotiable Instruments Act. It is only for this limited purpose that the defence evidence, if permitted, can be adduced. It is also submitted that after the learned Sessions Judge remanded the case to the trial Court, opportunity was given to the respondent-accused to produce defence evidence but he failed to do so and in this manner, the requirement of hearing also stands satisfied.
3. Per contra, the learned counsel for the respondent-accused has submitted that the order of the learned Sessions Judge is assailable. The learned Sessions Judge has dealt with the case in accordance with law and that the learned Judge has CRMC No. 339/2017 C/w CRMC Nos. 340, 341 & 342 of 2017 Page 2 of 8 rightly arrived at the conclusions that the respondent-accused was entitled to adduce evidence in defence which opportunity was not granted to him by the trial Court as required under Section 244 Cr. PC. In these circumstances filing of the petition under Section 561-A Cr. PC is misconceived. The respondent- accused is prejudiced as he has been denied opportunity and that in his statement before the Court he had claimed to be tried.
4. Heard and considered.
5. That perusal of the record shows that in all four complaints, have been filed by different complainants through their attorney against the respondent-accused. In the complaints so filed the case set out by the complainants is that in consideration of the past liability the respondent-accused issued cheques in favour of the complainants. The cheques were produced before the Bank. The Bank informed the complainants that the cheques have been dishonored by the Bank where the respondent-accused was holding his account. It is further stated that a Notice as required under Section 138 of Negotiable Instruments Act was issued by the complainants to the respondent-accused to enable the respondent- accused to pay the amount covered by the cheques. The respondent-accused did not pay the amount covered by the cheques. The complainants lodged the complaint before the Court of the learned Magistrate at Budgam through their attorney holder. After the accused was summoned his statement was recorded. The accused in his statement has admitted that the cheques were issued by him. He has also stated that the account in respect of which cheques were issued had been closed and the information to that effect was given in the News Paper. He has also stated that he has no knowledge about the legal notice. He has further stated that there are accounts between the parties and that the cheques issued by him need to be returned to him and in lieu thereof fresh cheques will be issued by him. He has also admitted that the actual amount received by him from the complainants is Rs. 1.41 Crore which is also inclusive of the house which was CRMC No. 339/2017 C/w CRMC Nos. 340, 341 & 342 of 2017 Page 3 of 8 sold did not belong to the complainants. On behalf of the complainants, witnesses were examined.
6. On a consideration of the matter the trial Court convicted the respondent-
accused and sentenced him to undergo two years imprisonment with fine of double the amount of cheques in the four complaints as were filed by the petitioner complainants therein. Aggrieved of his conviction, the respondent- accused filed four Appeals before the Court of the learned Principal Sessions Judge, Budgam. The Court of the learned Principal Sessions Judge took up the Appeals for disposal and delivered a common judgment in all of them.
7. A perusal of the judgment impugned in these petitions shows that several issues were taken by the respondent-accused. The learned Sessions Judge had dealt with all the issues which were taken in the Memorandum of Appeal and or were otherwise argued before the Court. The learned Sessions Judge, relying upon various decisions of the Apex and the other Courts has come to definite conclusion. In my view, the conclusions of law and fact recorded by the learned Sessions Judge cannot be interfered with. All the issued have been decided according to law. The findings of the learned Sessions Judge are accordingly upheld.
8. I do not agree with the counsel for the petitioner complainants that no prejudice was caused to the respondent-accused when on the date fixed for defence evidence the trial Court passed the order dated 11.04.2016. Section 244 of the Cr. PC, reads as under:
"244. Procedure when no such admission is made.
(1) If the Magistrate does not convict the accused under the preceding Section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced (in support of prosecution except such evidence which the accused may admit in an application made in this behalf), and also to hear the accused and take all such evidence as he produces in his defence.
Provided that the Magistrate shall not be found to hear any person as complainant in any case in which the complaint has been made by a Court.
CRMC No. 339/2017 C/w CRMC Nos. 340, 341 & 342 of 2017 Page 4 of 8(2) The Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
(3) The Magistrate may, before summoning any witness on such application, require that his reasonable expenses, incurred in attending for the purposes of the trial, be deposited in Court."
It is evident from the said provision that the Court is required "to hear the accused and take all such evidence as he produces in his defence." It was, therefore, incumbent on the trial Court to hear the respondent-accused and grant him an opportunity to adduce evidence in his defence. The learned Sessions Judge has rightly opined that during the course of trial there has been infraction of Section 244.
9. Section 138 of the Negotiable Instruments Act reads as under:
"138. Dishonor of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, either 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 and shall, without prejudice to any other provision of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fund which may extend to twice the amount of the cheque, or with both;
Provided that nothing contained in this Section shall apply unless:-
(a) The cheque has 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;
(b) The payee or the holder in due course of the cheque, as the case may be, makes 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; and
(c) The drawer of such cheque fails to make the 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."
One of the core elements of the said provision is that he accused should have issued the cheque to clear past liability. This is admitted by the accused in his statement. He has also admitted that he has received Rs 1.41 Crore from the complainants. He has also admitted that the cheques which he had issued, CRMC No. 339/2017 C/w CRMC Nos. 340, 341 & 342 of 2017 Page 5 of 8 related to an account which had been closed by him and that the complainants need to return the cheques and he would provide them with fresh cheques. The counsel for the petitioner complainants also argued that the respondent- accused has not only committed the offence under Section 138 of the Negotiable Instruments Act, but the other offences under the Ranbir Penal Code as well when he says that he issued the cheques relating to an account which had been closed by him. It was within the knowledge of the respondent-accused that he was issuing cheques of the accounts closed by him. Whether the respondent-accused has committed any other offence I leave it for its examination of the trial Court in view of the order I propose to pass in these matters.
10. The admitted position appears to be;
(i) Respondent accused has drawn cheques on an account which was maintained by him in a bank, which accounts were closed.
(ii) The cheques were drawn by the respondent accused for payment to the complainants to discharge the liability.
(iii) The cheques were returned by the bank unpaid. Offence under Section 138 of Negotiable Instruments Act, is complete when the cheques are returned as unpaid.
(iv) The complainants issued the requisite statutory notice making a demand for the payment. The respondent accused denied receipt of the notice and consequently no payment was made by the respondent accused to the complainant.
On the aforesaid basis the complainants lodged a complaint through their attorney holder. The trial Court convicted the respondent-accused and the learned Sessions Judge while dealing with all the issues raised by the respondent-accused accepted the Appeal only on the limited ground that the trial Court had not heard the accused and provided him with an opportunity of adducing evidence in defence. No other issue arises in the case.
11. The counsel for the petitioners/complainants has submitted that separate decisions on different dates should have been recorded by the trial Court in view of the fact that the complainants were different and different cheques had been drawn by the respondent-accused. I agree with this hypothesis. The CRMC No. 339/2017 C/w CRMC Nos. 340, 341 & 342 of 2017 Page 6 of 8 complaints cannot be tried together because each complaint is different. They cannot be clubbed. The complainants are different and the cheques are different.
12. Before concluding the matter, it appears to me that the complainants were clearly cheated by the respondent-accused. In their complaint, it is stated that the respondent-accused had notified through brochure that the Flats were being constructed at Rawalpora and they can be booked. The complainants trusted the representation so made booked the Flats and provided necessary finances to the respondent-accused. The respondent-accused failed to complete the Flats in accordance with the representation made by him. He sold the Flats to different persons which eventually led to quarrels and disturbances amongst the allottees at site. To close the deal, the parties settled the matter, complainants acting through their attorney holder. The respondent-accused with a view to discharge the lability issued the cheques dated 18.08.2015, payable to the complainants. The deception is writ large when the respondent-accused in his statement says that the accounts in respect of which cheques were issued stood already closed on 18.08.2015. Obviously when the cheques were presented, they were returned as unpaid because the account had been closed by the respondent-accused. It is alleged that the conduct of respondent-accused demonstrated his guilty mind in cheating the complainants and in causing wrongful loss to them and making wrongful gain for himself. The entire deal was done by the complainants through their attorney holder and it is only the respondent-accused who was dealing with the attorney holder in the entire transaction. During the course of hearing, the counsel for the petitioners/complainants also submitted that the respondent-accused has not only cheated the petitioners/complainants but the other persons as well and there are several other cases pending against him. Be that as it may, it is entirely for the trial Court to consider all these aspects during the course of trial.
CRMC No. 339/2017 C/w CRMC Nos. 340, 341 & 342 of 2017 Page 7 of 813. In view of the preceding analysis, these petitions are disposed of with the following modifications while maintaining and upholding the order of the learned Sessions Judge on all counts:
(i) That the trial Court shall give one opportunity to the respondent accused to adduce evidence in defence and thereafter hear the respondent accused;
(ii) That the trial Court shall deal with each of the complainants separately and fix different dates;
14. The judgment of the learned Sessions Judge is upheld on all the issues except for the limited extent as indicated above.
15. With this modification the petitions are disposed of. A copy of this order shall be placed on all the files.
16. The parties are directed to cause their appearance on the 31st day of October, 2018, before the trial Court. On that date the trial Court will fix different dates in all the four complaints and grant an opportunity to the respondent-accused to adduce the evidence in defence. Thereafter, the trial Court will hear the respondent-accused and decide the matter in accordance with the law and the observations made herein above.
17. The record be sent down along with copy of this order.
(M. K. Hanjura) Judge Srinagar 11.10.2018 "Manzoor"
CRMC No. 339/2017 C/w CRMC Nos. 340, 341 & 342 of 2017 Page 8 of 8