Chand Rattan Newar vs Shayam Rattan Newar

V.M. Jain, J.—This order shall dispose of the above mentioned five Criminal Misc. petitions, having common question of law and facts:

For the purpose of convenience, the facts of Crl. Misc. No. 1154-M of 1993 may be noticed.

Sham Rattan complainant Tiled a criminal complaint u/s 1-38 of the Negotiable Instruments Act. 1881 (herein referred to as Act), against accused Chand Rattan Newar. In the said complaint, it was alleged that the accused is the real brother of the complainant and that a joint sitting of the complainant and the accused besides Suresh (sic) and OIK Prithvi Chand had taken place at Sirsa in the first week of June, 1991: for resolving a dispute regarding the settlement of payment of outstanding amount by the accused to the complainant and then with the persuasion of the efforts of Suresh

Rattan, real brother of the complainant and the accused and also of Prithvi Chand. who is a common friend and well-wisher of the family, a settlement was arrived at between the complainant and the accused and in pursuance thereof the accused agreed to make the payment of the outstanding amount of Rs.1,38.700/- within a period of three weeks. Thereupon the accused handed over a cheque dated 25.6.1991 of the value of Rs. 1.38.700/- to the complainant. It was alleged that when the complainant deposited the said cheque with his banker for payment, the same was returned back unpaid with the objection "Referred to Drawer" ''various other allegations were made regarding the service of notice, etc. and the non-payment of the amount by the accused to the complainant within stipulated period in spite of notice. It was accordingly prayed that the accused be summoned to face trial, etc. After the filing of the criminal complaint, the complainant produced preliminary evidence by himself appearing in the witness box as PW-1 and examining PW-2 Rattan Singh to prove the dishonor of the cheque in question. After bearing the counsel for the complainant, the learned Magistrate vide order dated 27.1.1992 ordered the summoning of the accused for the offence u/s 138 of the Act.

The Learned Counsel appearing for the accused-petitioner submitted before me that there was no debt or liability which was to be discharged and that being so no case u/s 138 of the Act was made out. It was submitted that there was nothing on record to show that there was any legally enforceable debt or other liability for which the cheque in question was issued.

However, I find no merit in this contention of the Learned Counsel for the petitioner. In M/S Modi Cements Limited Vs. Shri Kuchil Kumar Nandi, . it was held by their Lordships of Supreme Court that once a cheque is issued by the drawer presumption u/s 139 in favour of holder must follow. It was further held in the said authority that merely because the drawer issues a notice to the drawee or to the bank for stoppage of the payment, it will not preclude an action u/s 138 by the drawee or the holder of a cheque in due course. It was further held in the said authority that the accused of course would get an opportunity u/s 139 of the Act to rebut the presumption at the trial.

In 1991 CC 273 (Cal), Voltas Limited & Ors. vs. Hiralal Agarwalla & Ors.. it was held by Calcutta High Court that the remarks "Refer to Drawer" necessarily means as per banking custom that the cheque has been returned for want of funds in the account of the drawer of the cheque. This finding was given by the Calcutta High Court after the complainant had placed on record copies of letters from three top bank officials. from Allahabad Bank. Bharat Chamber of Commerce and State Bank of Bikaner and Jaipur.

In 1999 (2) CCC 299. Devendra Kumar Rai vs. Ram Gopal Rai. it was held by Allahabad High Court that the question that the petitioner had not issued any cheque at all is purely a question of fact and is to be determined by the trial Court only and would not be a ground seeking quashment of proceedings u/s 138 Cr. P.C. Similarly in 1996 CLT 248, M/s. Compact Disc India Limited & Ors. vs. Contour Advertising (P) Ltd.. it was held by this Court that the defence of the petitioners at this stage will not be looked into particular when it involves facts. This Court would only quash proceedings if it is shown that the proceedings are an abuse of the process of the Court. It was further held in this authority that facts so alleged can well be gone into by the trial Court during the Course of trial.

In view of the law laid down in the above mentioned authorities and taking into consideration the facts and circumstances of the present case, in my opinion, no case is made out either for quashing the order of summoning dated 27.1.1992 or for quashing the criminal complaint filed by the complainant u/s 138 of the Act. especially when the accused/petitioner would get an opportunity to put his case during trial.

For the reasons recorded above. I find no merit in these petitioners All the live petitions arc dismissed.

Since the proceedings in these cases were stayed by this Court the parties through their counsel are directed to appear before the learned trial Magistrate on 4.9.2000. for further proceedings in accordance with law.