TMI Blog2021 (4) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 11.11.2020 the required amount is deposited or recovered from the petitioner the same will only be released in favour of opposite parties 2 and 3 on their furnishing adequate sureties, so that the amount remains secured. There are no merits in the petition - petition dismissed. - MISC. SINGLE No. 7094 of 2021 - - - Dated:- 26-3-2021 - Hon'ble Mohd. Faiz Alam Khan,J. For the Petitioner : Ashok Kumar Singh,Mohd. Isha Khan For the Respondent : G.A., Sri Vimal Kumar, Km.Vishwa Mohini ORDER Hon'ble Mohd. Faiz Alam Khan,J. 1. Heard Sri Ashok Kumar Singh along with Sri Mohd. Isa Khan, learned counsel for applicant, Sri Vimal Kumar and Km.Vishwa Mohini, learned counsel for opposite party nos.2 and 3 and Smt.Kiran Singh, learned Additional Goverment Advocate and perused the record. 2. By filing this petition, the petitioner has challenged the order dated 01.03.2021, passed by the Additional Sessions Judge, Court No.1, Lucknow in CNR No.UPLKO10135822020, Criminal Revision No.213/2020 (Mohd.Yahya Farooqui v. Asif Ali Ahmad Siddiqui and another) and the order dated 11.11.2020, passed by the Additional Court, Room No.5, Lucknow, under Section 143 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainants have filed this complainant and vide order dated 5.10.2019 the petitioner was summoned to face trial. 6. Petitioner appeared before the trial court and obtained bail. His statement under Section 251 Cr.P.C. was recorded on 3.2.2020 wherein the petitioner had denied to have given any cheque to the complainants in discharge of any financial liability, however he accepted that the cheque in question was bearing his signatures, however the same was missing. 7. During the course of trial, an application under Section 143A of Negotiable Instruments Act was moved by complainants and trial court by passing impugned order dated 11.11.2020 directed the petitioner to pay ₹ 6 lacs i.e. (20% of the cheque amount) within 60 days to the complainants. A revision was preferred against this order and the same was also dismissed by the revisional court vide impugned order dated 01.03.2021. Both these orders have been challenged by the petitioner by moving this petition. 8. Learned counsel for the petitioner while referring to the order of the trial court as well as of the revisional court submits that the complaint was filed on the basis of false and fabricated facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Para 10) (ii) Yogendra Pratap Singh vs. Savitri Pandey and another AIR 2015 SC 157 (Paras 31, 36 and 37) (iii) Anvar P.V. Vs. P.K. Basheer and others (2014) 10 SCC 473 (Para 14) (iv) Securities and Exchange Board of India vs. Gaurav Varshney and others (2016) 14 SCC 430 (Para 43) (v) Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal (1999) 3 SCC 35 (Para 12) (vi) Krishna Janardan Bhat vs. Duttatraya G. Hegde AIR 2008 SC 1325 (Para 34) 11. Learned counsel for opposite party nos. 2 and 3 submits that once the cheque has been issued by the petitioner, there is a presumption under Section 139 of the Negotiable Instruments Act that the same has been issued in discharge of legally enforceable liability and, therefore, once the petitioner has admitted his signatures on the impugned cheques, he could not confront his liability to pay. 12. It is also submitted that the notice of demand was given as required under Section 138 of the Negotiable Instruments Act and within limitation the complaint was filed and therefore no illegality has been committed either by the trial court or by the revisional court as the petitioner had admitted his si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. (2) The offence under section 138 shall be inquired into and tried only by a court within whose local local jurisdiction,-- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued on 23.07.2019 through registered post as well as through e-mail and Whats App, however the notice given through the registered post was received back unserved on 29.07.2019 and according to the complainants, the cause of action had accrued on 7.8.2019 and the complaint was filed on 17.8.2019. 18. Having regard to the conditions which are required to be fulfilled before summoning any person to face the trial with regard to Section 138 of the Negotiable Instruments Act, prima facie it appears that those requirements/conditions have apparently been fulfilled. 19. So far as the submissions of learned counsel for petitioner with regard to the non compliance of Section 251, Cr.P.C. is concerned, perusal of the record would reveal that the statement of the petitioner has been recorded by the trial court and sufficient information pertaining to the accusation, which has been leveled against the petitioner, has been communicated to him by the trial court and the petitioner has categorically replied that the signatures on the impugned cheque is of him, however the cheque had gone missing and the same had not been issued in discharge of any legally enforceable liability and also tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to lead the evidence to rebut such presumption. 23. In the case of K.N. Beena vs. Muniyappan, (2001) 8 SCC 458, it is observed that under Section 118 of the N.I. Act, unless the contrary is proved, it is to be presumed that the negotiable instruments (including a cheque) had been made or drawn for consideration. It is further observed and held that under Section 139, the Court has to presume, unless the contrary is proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. It is further observed that thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that the cheque has not been issued for a debt or liability is on the accused. 24. In the case of Rangappa vs. Sri Mohan, (2010) 11 SCC 441 Hon'ble Supreme Court held as under :- Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin 15 days i.e. till 7.8.2019, the complainants have filed this complainant. 29. Hon'ble Supreme Court in C.C. Alavi Haji Vs. Palapetty Muhammed and Ors., MANU/SC/2263/2007 held as under :- 5. As noted hereinbefore, Section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so. Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. However, with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under Section 138 of the Act has been made subject to certain conditions. These conditions are stipulated in the proviso to Section 138 of the Act, extracted above. Under Clause (b) of the proviso, the payee or the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. Under Clause (c), the drawer is given fif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), this Court observed: One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation, of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. 11. Applying the above conclusions to the facts of this case, it must be held that the High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice Under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence. We must mention that in C.C. Alavi Haji, this Court did not deviate from the view taken in Vinod Shivappa, but reiterated the view expressed therein with certain clarification. We have already quoted the relevant paragraphs from Vinod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for petitioner pertaining to non service of notice is premature and is also devoid of any force. 33. Learned Counsel for petitioner with regard to the order passed by the Courts below under section 143A Negotiable Instrument Act has not brought any other ground which may find favour of this Court. Section 143A of the Negotiable Instruments Act, reads as under : (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation to the complainant-- (a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and (b) in any other case, upon framing of charge. (2) The interim compensation under sub-section (1) shall not exceed twenty per cent. of the amount of the cheque. (3) The interim compensation shall be paid within sixty days from the date of the order under sub-section (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque. (4) If the drawer of the cheque is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim compensation represented arrears of land revenue. The coercive methods could also, as is evident from provision like Section 183 of the Maharashtra Land Revenue Code, in some cases result in arrest and detention of the Accused. 35. Having regard to the fact that the signatures of the petitioner on the cheque has been accepted by him and the cause of action has accrued after 01.09.2018 (the day from which Section 143A had come into effect) and at this stage minute scrutiny of the evidence is neither desirable nor required and also the ytrial Court while directing to pay amount under 143A N.I.Act has directed there appears no illegality in the orders of the Courts below. However the trial Court has not made any provision for securing the amount as in case of acquittal of the petitioner how the money received by him in compliance of the order of the trial court will be returned . Therefore the trial court is directed that if in compliance of its order dated 11.11.2020 the required amount is deposited or recovered from the petitioner the same will only be released in favour of opposite parties 2 and 3 on their furnishing adequate sureties, so that the amount remains secured ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
