TMI Blog2021 (2) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be decided while taking the cognizance - The Apex Court also in MMTC LTD. VERSUS MEDCHL CHEMICALS PHARMA (P.) LTD. [ 2001 (11) TMI 837 - SUPREME COURT] , has categorically held that complaint need not allege existing of a subsisting debt or liability against which cheque issued. Burden of proving non-existence of any debt or liability is on the accused, to be discharged at the trial. Prior to that complaint cannot be quashed by High Court under Section 482 of Cr.P.C. In the case on hand also, the Court has only after considering the evidence has to decide whether the liability is in existence or not and the same cannot be decided without recording the evidence. Hence, Section 482 of Cr.P.C. cannot be invoked to quash the proceedings. The Apex Court also in the case of HMT Watches Limited's case, categorically held that Section 482 of Cr.P.C, can be exercised only to prevent abuse of process and further observed that sometimes on same set of facts, civil and criminal proceedings are also maintainable and further held that the sitting under Section 482 of Cr.P.C, while exercising the powers disputed question of fact cannot be disabled. Only the Trial Court can determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2020 - - - Dated:- 28-1-2021 - THE HON'BLE MR. JUSTICE H.P. SANDESH FOR THE PETITIONER : SRI. VARDHAMAN V. GUNJAL, ADVOCATE FOR THE RESPONDENT : SRI. SANDESH J. CHOUTA, ADVOCATE FOR SRI. CHANDRASHEKAR R.P, ADVOCATE ORDER This petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the order dated 04.03.2020 passed in Crl.R.P.No.177/2019 by the II Additional District and Sessions Judge at Chikkamagaluru, upholding the issuance of summons issued by the II Additional Civil Judge JMFC., Chikkamagaluru, in PCR No.252/2019 subsequently numbered as C.C.No.690/2019 vide order dated 08.05.2019. 2. The factual matrix of the case is that, the respondent herein had filed a private complaint under Section 200 of Cr.P.C, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, ('NI Act' for short), contending that the petitioner herein had borrowed a sum of ₹ 35,00,000/- from the respondent herein as a hand loan. When demanded the repayment of the said amount, the petitioner herein has issued a self cheque dated 22.12.2018 for a sum of ₹ 5,00,000/- towards part payment and assured that the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rror by misleading the complainant. The very approach of both the Magistrate as well as the Revisional Court is an error apparent on the face of the record and failed to consider the grounds urged before the Magistrate and Revisional Court that the claim is barred by limitation. The cheque is also kept for a period of two months and there is no endorsement and in the absence of endorsement when the cheque was presented, it does not attract Section 138 of the NI Act. It is also contended that the respondent is not a holder-in-due course of the cheque. The learned counsel reiterating the grounds urged in this petition vehemently contends that for quashing of this petition he relying on four grounds. 6. The first ground urged by the learned counsel for the petitioner is that the complaint averments disclose that the alleged loan transaction is more than four years and the same is barred by limitation. The issuance of self-cheque also does not constitute an offence and also the same is not an acknowledgement. 7. The other contention of the learned counsel for the petitioner is that the cheque though it is a self-cheque, the respondent was holding the same for a period of two mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judgment, the counsel would contend that there was no valid acknowledgement of liability within the three year period of limitation referring to Section 25(3) of the Contract Act. 13. Further, learned counsel relied upon the Judgment of this High Court in the case of H. Narasimha Rao v. Venkataram R reported in 2007 Cri.L.J. 583, referring to this Judgment he would contend that when the debt has become barred by limitation the accused was acquitted. 14. Learned counsel also relied upon the Bombay High Court Judgment in the case of Narendra V. Kanekar vs. Bardez Taluka Co-op Housing Mortgage Society reported in 2006 Cri.L.J. 3111, he would contend that the cheque given for the discharge of a time barred debt itself becomes a contract under Section 25(3) and the question arises whether the same can lead to a conviction under Section 138 of the NI Act. 15. The learned counsel also relied upon the Kerala High Court Judgment in the case of Ramakrishnan v. Parthasardhy, reported in 2003(2) Ker.L.T. 613, he would contend that the question arises in this case is whether the time barred debt within Section 25(3) of the Contract Act and further observed that it is the failure to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dishonoured can embroil a drawer in a criminal prosecution. 21. The learned counsel referring to the above judgments would contend that the cheque issued for discharge of time barred debt not comes within the purview of Section 138 of the NI Act. 22. The learned counsel with regard to question No.2 is concerned, whether bearer cheque requires to be endorsed by the drawer of cheque payable to self requires an endorsement with the concerned mainly relies upon the meaning of endorsement, particularly, in Negotiable Instruments and also holder in due course. The learned counsel referring the same would contend that without an endorsement cannot be a legal tender enabling him to present the same. 23. The learned counsel also relied upon the order passed by this Court in the case of Nabiraja v. State Bank of India in Criminal Petition No.6816/2019 dated 29.08.2019, he would submit that in the said case there was an endorsement. But in the case on hand, there was no such endorsement. 24. The learned counsel with regard to the point Nos.3 and 4 raised by him submits that, whether the Magistrate ought to look into both the complaint and accompanying documents together to scrutin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, the complainant will have to initially lead evidence under Section 139 of the NI Act and rebut the presumption, which is lacking in the present case. The learned counsel would submit that the issuance of summons is wholly without jurisdiction. The learned counsel vehemently contends that it is necessary that when a sworn statement be recorded it should also contain the ingredients of Section 139 of the NI Act when the same has not been stated in the affidavit and also there is an admission that the loan was allegedly received during 2013, there is clearly lack of application of mind on part of the Magistrate in the matter of issual of summons, therefore, the judgments relied on in S.Natarajan's case (supra) that only after the accused rebuts the presumption during a trial the matter can be disposed off is far-fetched. 28. The learned counsel would submit that it is apparent from the complaint that the claim was barred and thus the complaint ought to have been rejected in view of the fact and law laid down in The Bidar Urban Co-operative Bank Ltd,'s case, wherein there is no legally recoverable debt and that the cheque in question does not amount to acknowledgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 25 that, once the issuance of the cheques is admitted and as the words or bearer have not been struck off, the complainant is held to the holder of the said cheques in due course though it was written as self and thus he is entitled to receive the cash and on dishonouring of the said cheques, he can very well file the complaint. 33. The learned counsel also relied upon the Judgment of the Kerala High Court passed in the case of Sarafudheen v. T. Muhammed Ashraf reported in 2016 SCC OnLine Ker 9538 (Criminal Appeal No.1870 of 2009), and brought to the notice of this Court that the paragraph No.12 of the Judgment with regard to the term or bearer has not been scored off. The learned counsel in respect of time barred cheque is concerned, referred the Judgment of the Apex Court reported in M.M.T.C. Ltd.'s case (supra), the Apex Court in paragraph Nos.13 to 17, discussed in detail and held that the complaint need not allege existing of a subsisting debt or liability against which cheque issued. Burden of proving non-existence of any debt or liability is on the accused, to be discharged at the trial. Prior to that complaint cannot be quashed by High Court under Section 482 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respective learned counsel and also on perusal of the grounds of the petition, the following points that would arise for the consideration of this Court are: (i) Whether this Court can quash the proceedings in coming to the conclusion that the issuance of self cheque in respect of the time barred debt? (ii) Whether the self cheque issued by the petitioner attracts Section 138 of the Negotiable Instruments Act, 1881? (iii) Whether both the Courts have committed an error in taking the cognizance and confirming the cognizance by the Revisional Court and it requires an interference of this court exercising the powers under Section 482 of Cr.P.C.? (iv) What order? Point No.(i): 38. The first count of argument of the petitioner's Counsel is that the issuance of self cheque is in respect of the time barred debt. It is contended that the transaction according to the complainant was taken place four years prior to the issuance of alleged self cheque and the same is barred by limitation. 39. The learned counsel in the synopsis filed by him relied upon several judgments of different High Courts and also the Judgment of the Apex Court and mainly argued that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be invoked to quash the proceedings. 43. The learned counsel relied upon the Judgment of this Hon'ble Court rendered in Criminal Appeal No.200057/2016 in the case of The Bidar Urban Co-operative Bank Ltd., v. Mr. Girish, he would contend that, regarding time barred transaction is concerned, the said Judgment is delivered on merits not at the stage of taking cognizance. Hence, the same is not applicable to the case on hand. 44. The Apex Court also in the case of Pulsive Technologies Private Limited's case (supra), has categorically held that the High Court was dealing with a petition filed under Section 482 of Cr.P.C. for quashing the complaint. Take note of the factual issue, as to whether the complainant had discharged its obligations or not, the High Court would not have given its final verdict at this stage. It is a matter of evidence. The Apex Court reiterating the principles laid down in the Judgment of M.M.T.C.'s case (supra), has observed that the High Court failed to take note of the most vital caution sounded therein. Whether any money is paid by the accused to the complainant is a matter of evidence. In this case also it is the case of the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 9 of the NI Act and so also the Judgment in the case of Mahesh Goyal v. S.K. Sharma reported in 1997 Cri.L.J. 2868 and Rama Shetty's case. Referring to these judgments would come to a conclusion that when the word in the self cheque is or bearer , normally found on a cheque leaf, were intact or were scored off. The opinion expressed therein is with reference to the tenor of Section 138 of the NI Act. It is also observed that the cheque in question was drawn on self or bearer. It is further observed that several High Courts have taken a view that a bearer cheque, if dishonoured, would attract the rigour of Section 138 of the NI Act. In paragraph No.8 discussed with regard to 'holder in due course' and in paragraph No.9, it is held that if word bearer has not been deleted and even if it is not scored off, if the same was in possession and presented before the bank, but it was dishonoured. It is clear that it was 'holder in due course'. If the word bearer is not scored off, he becomes the 'holder in due course' and it attracts Section 138 of the NI Act. The Delhi High Court also in its judgment in Adigear International's case (supra), reiterate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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