Kapoor Chand vs Mohan Lal Gupta

Harmohinder Kaur Sandhu, J.—Kapoor Chand, a partner of Gupta Oil Store, Babin Road, Dhanora, has filed this petition u/s 482 of the Code of Criminal Procedure for quashing the complaint dated February 20, 1992, annexure P-1 u/s 138 of the Negotiable Instruments Act, the summoning order passed on April 27, 1992, annexure P-2 and all subsequent proceedings arising therefrom. The allegations in the complaint, annexure P-1, filed by Mohan Lal, respondent, in brief are that Mohan Lal was a partner of Pankaj Filling Station situated on G.T. Road, Karnal, which was a dealer of Hindustan Petroleum Corporation. On August 30, 1991, the petitioner as a partner of Gupta Oil Store, Dhanora, issued a cheque No. NMCA/A-154204 for an amount of Rs. 1,30,000 payable at New Bank of India, Ambala Cantt., to payee''s account. This cheque was handed over to Mohan Lal at Karnal and he deposited it in savings bank account No. 10175 with the Union Bank of India, Karnal branch, on December 16, 1991, for collection of the amount from New Bank of India, Karnal. The money in the account of the present petitioner being insufficient, the cheque was dishonoured by New Bank of India, Ambala Cantt., on December 26, 1991, vide its memo to the effect. Thereafter, a registered notice was sent to the petitioner on January 6, 1992, but payment of the amount was not made within 15 days and thus the complaint, annexure P-l, was filed on February 20, 1992, in the court of the Chief Judicial Magistrate, Karnal.

The petitioner alleged that he had installed a petrol pump of Hindustan Petroleum Corporation on some land half portion of which was purchased by Mohan Lal "benami" and Mohan Lal wanted to evict him from that land. He opened a fraudulent account in the name of Gupta Oil Store, Dhanora, through its partner, i.e., the petitioner in New Bank of India, Ambala Cantt., fabricated a bogus cheque and got the same dishonoured on December 26, 1991, on the ground of insufficient funds. In fact the petitioner had no account in New Bank of India, Ambala Cantt., It was further alleged that there was litigation between the petitioner and his brother, Om Parkash, and Mohan Lal in connivance with Om Parkash wanted the petitioner to be declared as partner in Gupta Oil Store, Dhanora, whereas the fact was that he was the sole proprietor of the firm, Gupta Oil Stores, Dhanora. The complaint was filed in connivance with Om Parkash to harass him so that he may vacate the disputed land. The complaint did not reveal any offence u/s 138 of the Negotiable Instruments Act, 1881, as it was unspecific and vague and it amounted to an abuse of the process of the court. It was not mentioned in the complaint on which date the cheque was given by the petitioner to the respondent nor it was explained for what transaction the huge amount of Rs. 1,30,000 was proposed to be paid to the petitioner.

I have heard Mr. Aakash Jain, counsel for the petitioner, and Mr. Maharaj Kumar, counsel for the respondent.

It was argued on behalf of the petitioner that the allegations made in the complaint did not reveal even prima facie the commission of an offence u/s 138 of the Negotiable Instruments Act. The cheque in question was not shown to have been issued for the discharge of some liability. The complaint was mala fide and was filed with the malicious intention of putting pressure on the petitioner so that he may vacate the disputed land.

It was alleged on behalf of the respondent that a prima facie case was made out against the petitioner and the learned trial court after considering the preliminary evidence found sufficient grounds for proceeding against the petitioner for an offence punishable u/s 138 of the Negotiable Instruments Act. It was contended that the cheque was issued by the petitioner and when the same was presented for collection, the New Bank of India, Ambala Cantt., returned it without clearance. Section 138 of the Negotiable Instruments Act reads as follows :

"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 extend to one year or with fine 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 fifteen 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."

According to these provisions, the cheque is required to be presented to the bank within a period of six months from the date from which it is drawn or within the period of its validity whichever is earlier. In the complaint, annexure P-1, it was mentioned that the cheque was dated August 30, 1991, and it was presented for collection on December 16, 1991, i.e., within a period of six months from the date on which it was drawn. The bank dishonoured the cheque on December 26, 1991, and on receipt of the same the complainant sent a registered notice on January 6, 1992. Payment of the amount was not made within fifteen days of the issuance of the notice and then the complaint was filed within the period prescribed by the Act. The questions whether the petitioner deliberately evaded to receive notice or the notice could not be served upon him as he had gone out of station and what was its effect are to be determined by the trial court after recording evidence. The various pleas raised by the petitioner in the present petition that in fact he had no account in New Bank of India and the account was fraudulently opened by the respondent himself and the cheque was forged are also to be determined by the trial court upon evidence which may be adduced by the parties. The present is not a-case where the allegations made in the complaint make out no case against the petitioner or the complaint does not disclose the essential ingredients of the offence. When the complaint does disclose the commission of an offence, there is no justification to quash it. As a result, I find no merit in this petition and dismiss the same.