TMI Blog2020 (1) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... r Singh For the Petitioners : Shri Gaurav Shrivastav, learned Counsel For the Respondent : Shri Krishnpal Singh Khichi, learned Counsel ORDER 1. Both these miscellaneous criminal cases have arisen out of the common order dated 07.05.2015 passed in Criminal Revision Nos.154 and 155 of 2011 by the Additional Sessions Judge, Agar, District-Shajapur, therefore, they are heard analogously and are being decided by this common order. 2. The petitioners are aggrieved as their complaints against respondent under Section 138 of Negotiable Instruments Act, 1881 for dishonour of cheques issued by them have been dismissed by the Trial Court vide order dated 7.2.2011 and this order is confirmed in revision vide impugned order dated 07.05.2015 delivered in Criminal Revision Nos.154 and 155 of 2011 by the Additional Sessions Judge, Agar, District-Shajapur. 3. The sole ground for dismissal of the complaints is that the disputed cheques were dishonoured by the bank on the ground that Signature do not match specimen . 4. The question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period. 7. The question that falls for our determination is whether dishonour of a cheque would constitute an offence only in one of the two contingencies envisaged under Section 138 of the Act, which to the extent the same is relevant for our purposes reads as under : 138. Dishonour 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 of a term which may extend to one year, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j v. State of Maharashtra (1975) 3 SCC 322 this Court held that a narrow interpretation of Section 138 as suggested by the drawer of the cheque would defeat the legislative intent underlying the provision. Relying upon the decision in State of Tamil Nadu v. M.K. Kandaswami (1975) 4 SCC 745, this Court declared that while interpreting a penal provision which is also remedial in nature a construction that would defeat its purpose or have the effect of obliterating it from the statute book should be eschewed and that if more than one constructions are possible the Court ought to choose a construction that would preserve the workability and efficacy of the statute rather than an interpretation that would render the law otiose or sterile. The Court relied upon the much quoted passage from the Seaford Court Estates Ltd. v. Asher (1949 2 All E.R. 155) wherein Lord Denning, L.J. observed: The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holder not to present the same would not constitute an offence, was overruled. This Court observed: 18. The aforesaid propositions in both these reported judgments, in our considered view, with great respect are contrary to the spirit and object of Sections 138 and 139 of the Act. If we are to accept this proposition it will make Section 138 a dead letter, for, by giving instructions to the bank to stop payment immediately after issuing a cheque against a debt or liability the drawer can easily get rid of the penal consequences notwithstanding the fact that a deemed offence was committed. Further the following observations in para 6 in Electronics Trade Technology Development Corpn. Ltd. Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly (emphasis supplied) in our opinion, do not also lay down the law correctly. 20. On a careful reading of Section 138 of the Act, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. To the same effect is the decision of this Court in Goaplast (P) Ltd. v. Chico Ursula D souza and Anr. (2003) 3 SCC 232, where this Court held that stop payment instructions and consequent dishonour of the cheque of a post-dated cheque attracts provision of Section 138. This Court observed : Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. The said provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation which serves the object of the statute. A post-dated cheque will lose its credibility and acceptability if its payment can be stopped routinely. The purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque. In view of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. For instance this Court has held that if after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf. Such changes or alteration in the mandate may be dishonest or fraudulent and that would inevitably result in dishonour of all cheques signed by the previously authorised signatories. There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment. So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount was not sufficient to meet the requirement of the cheque, would attract the provisions of Section 138. 17. It was contended by learned counsel for the respondent that the respondent-company had offered to issue new cheques to the appellant upon settlement of the accounts and that a substantial payment has been made towards the outstanding amount. We do not think that such an offer would render illegal a prosecution that is otherwise lawful. The offer made by the respondent-company was in any case conditional and subject to the settlement of accounts. So also whether the cheques were issued fraudulently by the authorised signatory for amounts in excess of what was actually payable to the appellant is a matter for examination at the trial. That the cheques were issued under the signature of the persons who were authorised to do so on behalf of the respondent-company being admitted would give rise to a presumption that they were meant to discharge a lawful debt or liability. Allegations of fraud and the like are matters that cannot be investigated by a Court under Section 482 Cr.P.C. and shall have to be left to be determined a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
