Parmod Kumar vs Subodh Kumar

Arun Kumar Goel, J.—This revision at the instance of the accused, hereinafter referred to as the Petitioner is directed against the order dated 19.5.1996 whereby notice of accusation had been issued to him for there being sufficient grounds to record prima facie case u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the Act'') as amended upto date. This complaint was filed by the complainant (hereinafter referred to as the Respondent).

The Petitioner has challenged the impugned order and has prayed for quashing of the same as, according to him, no case is made out from the facts detailed in the complaint as well as on the basis of the evidence on record against him u/s 138 of the Act.

In order to properly appreciate the submissions-made on behalf of the parties, it is necessary to narrate the facts of the case. A complaint was filed by the Respondent u/s 138 of the Act on the allegations that he and the Petitioner are real brothers and they have share in the property of their late father consisting of several rooms at 72, Tilak Road, Dehradun and he visits Dehradun off and on, though it is averred in the complaint that he is a resident of Ward No. 10, Devi Nagar, Paonta Sahib. According to the Respondent, in the last week of November, 1993, the Petitioner had fixed the date of his daughter''s marriage. So, he required money and a sum of Rs. 1,00,000/- was demanded by the later from the former. According to the Respondent, the Petitioner came to Paonta Sahib where the former could arrange only Rs. 53,000/- and paid it to the later. The Petitioner is stated to have assured the Respondent to liquidate this amount within 3 months but failed to do the needful and when demand was made by the Respondent, a cheque bearing No. 215631 dated 24.10.1994 of Punjab National Bank, Tilak Road, Dehradun in the sum of Rs. 53,000/- was issued by the Petitioner favouring the Respondent. This cheque, when sent for collection by the Petitioner through his banker at Paonta Sahib, was returned by the banker of the Petitioner with the memo "insufficient funds". Intimation in this behalf was sent by the banker of the Petitioner vide its memo dated 8.12.1994. At this stage, it is necessary to reproduce the relevant averments made by the Respondent in complaint filed by him u/s 138 of the Act.

That the complainant issued a notice on dated 19.12.1994 through his advocate Shri Ashok Gupta, Advocate Paonta Sahib but there was no effect of the same.

That the accused/Respondent is not making the payment inspite of the verbal request and reminder.

That the cause of action has arisen in favour of the complainant and adjacent the Respondent. Moreover the transaction of the amount by the bankers was held at Paonta Sahib so this Court has got the jurisdiction to try and decide this case.

It is, therefore, prayed that the accused/Respondent may kindly be proceeded u/ s 138 of Negotiable Instruments Act, so that the justice could be imparted to the complainant and the accused/Respondent may kindly be deal with law.

This complaint u/s 138 of the Act was filed in the Court of Sub Divisional Judicial Magistrate (I), Paonta Sahib on 17.1.1995 when it was ordered to be put up on 18.1.1995. From the record of the trial Court, it is evident that the statement of the Respondent was recorded on 4.2.1995, which is reproduced in verbatim herein below:

(Matter in Hindi not reproduced - Ed.)

After getting the statement of Respondent recorded, his learned Counsel closed the evidence and the trial Court, vide order dated 7.2.1995 felt satisfied that there appeared to be sufficient grounds to proceed against the Petitioner for the commission of offence u/s 138 of the Act and accordingly, the Petitioner was ordered to be summoned for 13.3.1995. Thereafter the record shows that the case proceeded before the trial Court and finally vide impugned order, the Court was further satisfied that since there are sufficient grounds to record prima facie case being there against the Petitioner, so notice of accusation was put to him u/s 138 of the Act to which he pleaded not guilty and has challenged the said order in the present proceedings.

At this stage, it is necessary to refer to the provisions of Section 138 of the Act which has been brought on the statute book by Act No. 66 of 1988 which runs as follows:

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 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 information by him from the banker regarding the return of the cheque as unpaid. In the present case it is admitted case of the Respondent that vide memo dated 8.12.1994, he was informed by his banker regarding Dishonour of the cheque in question by the banker of the Petitioner due to insufficiency of the funds and memo issued by the banker of the Petitioner is Ex.PD. It was within 15 days of the receipt of this information that the Respondent was to make a demand upon the Petitioner Neither in the complaint nor in the evidence there is anything to show as to what was the date when the information regarding the cheque having been dishonoured was received by the Respondent. In any event taking the ate of memo issued by the banker of the Respondent about dishonour to be the date of receipt of said information, that is, 8.12.1994, the Respondent could issue notice within 15 days thereof say on or before 23.12.1994. For the record, it is revealed that notice of demand was got issued by the Respondent though his learned Counsel which is dated 19.12.1994 and postal receipt shows that it was despatched on the same date. So, first requirement of this section is met with.

Now further period of 15 days has to be allowed after the receipt of the notice under proviso (c) of Section 138 supra. Shri Kanwar, learned Counsel for the Petitioner, has pointed out that neither in the complaint nor in the preliminary evidence recorded on the basis whereof notice of accusation has been issued to his client vide impugned order there is anything to show as to what was the date of receipt of notice of demand so as to reckon this period of 15 days. On this basis, he has further urged that since the Respondent has failed to point out anything in this behalf, as such, the complaint prima facie is not maintainable. Shri Kanwar has also urged that in order to invoke the provisions of Section 138 of the Act with a view to fasten his client with criminal liability, it is prima facie for the Respondent to show that all legal requirements have been met with. Since needful has not been done nor there is anything either in the complaint or in the statement of the Respondent (which is reproduced verbatim herein this judgment), the notice as well as the complaint was liable to be quashed. Shri Kanwar has further pointed out that for taking cognizance by the Magistrate of an offence in the present case tantamounts to having done so without application of mind to the allegations in the complaint in order to satisfy whether the allegations do constitute the offence alleged is improper. In order to satisfy the definition of complaint in Section 2(d) of the Code of Criminal procedure, itself, it is for the complaint to show the commission of an offence. In order to constitute an offence, there must be some act or conscious omission which is made penal by any provision under law. It was further pointed out that the issue of process and consequential trial on the basis of such cognizance, as in the present case, would be nothing sort of an abuse of the process of law and thus, the complaint was liable to be quashed and set aside.

In R.P. Kapur Vs. The State of Punjab, the Hon''ble Apex Court has held that where the allegations in the First Information Report or the complaint even if they are taken on there face value and accepted on there entirely do not constitute the offence alleged in such cases, no question of appreciating evidence arises; it is a matter of merely looking on the First Information Report to decide, whether the offence alleged is disclosed or not. On the other hand, Shri Arora, learned Counsel for the Respondent, while controverting the submissions of Shri Kanwar, has urged that the notice of accusation issued to the Petitioner is legal and is sustainable on the facts stated in the complaint and evidence recorded in support thereof, which is further supported by the documents placed on record, According to him, the Petitioner can make his grievance, if any, during the course of trial before the Court below and the present revision petition, thus, merited dismissal. Shri Arora further urged that there is no illegality muchless impropriety which may warrant interference in the present proceedings and on this basis it was further pointed out that the present revision petition is liable to be dismissed.

In support of his aforesaid submissions, Shri Arora has pressed into service few decisions to which a reference is being made hereafter. First case on which reliance was placed by Shri Arora is Latest Judicial Reports 1995 (1) 552 Vikram Bhargawa v. Ashish Pal Khatri. A perusal of this judgment shows that the court was primarily concerned on 2 questions (a) which Court has got the jurisdiction to try the case when a cheque is issued from Delhi and payment was to be made at Panipat and (b) whether the amount due on cheque is liability or in the nature of loan which question according to the learned Judge of Punjab and Haryana High Court was to be gone into after recording the evidence of the panics. In that background the summoning order was not quashed. Next case on which reliance was placed in A.R. Kumbbat Vs. Peejay Rubber Industries Ltd. and Others, Respondent. In this case it has been held by the Kerala High Court that in the event of dishooour of cheque which is returned with the endorsement refer to the drawer and on the failure of the drawer to pay amount inspite of issuance of statutory notice ingredients of offence u/s 138 of the Act were made out and the question whether there were sufficient funds in the bank or not being a question of fact, High Court refused to interfere. Shri Arora has further placed reliance on unreported decision of this Court in (a) Criminal Revision No. 60/96 Pradeep Sharama v. M/s Mehta Bishan Dass and (b) Criminal Revision No 59/96 Pradeep Sharma v. Shivambu International, both decided on 19th August, 1996 wherein it has been held by the learned Judge that the question whether the complaint was made before the trial Court was barred by time or not can be gone into by the trial Court only after affording opportunity to the parties to produce evidence and thus, the Court was further of the view that it cannot go into the said question and thus both the revisions were dismissed.

After considering the respective submissions made on behalf of the parties by the learned Counsel, it is clear that in order to sustain the prosecution against the Petitioner, prima facie the complaint must disclose such facts so as to constitute an offence. Material facts from the complaint have been reproduced in this judgment and a perusal thereof shows that the complaint speaks of only issuance of notice dated 19th December, 1994, when was it received by the Respondent has not been specifically pointed out in the complaint. Even while getting the statement recorded which is reproduced verbatim herein this judgment, there is nothing to show that when was the notice of demand received by the Petitioner. Even during the course of hearing of this revision petition Shri Arora was asked to show this Court anything to prima facie establish the date of receipt of notice of demand on the Petitioner, but he was not in a position to produce anything in this behalf.

Date of receipt of notice assumes significance because it is after the expiry of 15 days of this date that the complaint can be made by the complaint, i.e. Respondent in the present case. In these circumstances, I am constrained to hold that the complaint did not prima facie disclose the facts so as to constitute the commission of an offence u/s 138 of the Act. Not only this, but neither the documents produced at the time of preliminary evidence nor the statement of the Respondent recorded during the course of preliminary evidence disclosed the date of receipt of notice of demand by the Petitioner within the meaning of proviso (c) to Section 138 supra. In this view of the matter the complaint made by Respondent was not maintainable as it prima facie did not disclose the commission of offence u/s 138 of the Act. Even on consideration of preliminary evidence, the ingredients of said Section have not been disclosed by the Respondent, nor any document has been placed on record to show that what was the date of service of notice of demand within the meaning of provision (c) to the said Section, as such the complaint was not maintainable before the trial Court and the Magistrate had further fallen into error in issuing notice of accusation upon the Petitioner by means of impugned order.

To be fair to the learned Counsel for the Respondent, it is necessary to notice that he vehemently urged that all these questions need to be determined by the trial Court and thus the revision petition is not maintainable according to him. While considering this submission in the light of the facts enumerated herein this judgment, it is evident that without laying proper foundation in the complaint and further without supporting it with the necessary legal evidence the complainants case could not proceed further. Besides this the case law cited at the bar also does not advance the case of the Respondent in any manner whatsoever. So far the two judgments of this Court, on which reliance has been placed, suffice it to say that in the facts and circumstances of those cases those judgments were given and arc thus not applicable to the present case. On the other hand, in the face of the facts reproduced from the complaint as well as preliminary evidence recorded by the trial Court herein this judgment, it is manifestly clear that neither in the complaint nor from the evidence, the ingredients of Section 138 of the Act arc made out, in the absence whereof the complaint was not maintainable and thus consequently all the proceedings taken on the basis of such a complaint by the trial Court arc also liable to be quashed.

In the face of facts detailed herein this judgment and legal position applicable to the present case, it is clear that on the basis of the complaint notice of accusation could also not have been ordered to be issued upon the Petitioner.

As a result of the aforesaid discussion, the revision petition is allowed and the complaint filed by the Respondent u/s 138 of the Act in case No. 6/3 of 1995 titled as Subodh Goyal v. Parmod Kumar and notice of accusation vide impugned order, both are quashed and set aside.