Pradeep Kumar Malhotra vs State of West Bengal

Ashim Kumar Roy, J.—In the aforesaid three criminal revisions since the Petitioner sought for quashing of the proceedings u/s 138 of the Negotiable Instruments Act against him on a common question of law the same are taken up for hearing together.

Heard the learned Counsel appearing on behalf of the Petitioner. Perused the materials on record.

It appears from the submission of the learned Advocate of the Petitioner and from the averment made in the aforesaid criminal revisions, the grounds on which the impugned proceedings were challenged are as follows;

(a) The cheques in question were presented for encashment long after the period of its validity.

(b) There is no legally enforceable debt or liability.

(c) Those cheques were kept with the complainant as security, nor made over to him towards the discharge of any legally enforceable debt or liability.

(d) Suppression of material facts that the complainant company is not listed before any stock exchange.

(e) One criminal case has been started for dishonour of several cheques.

So far as the first two criminal revisions are concerned, according to the case of the complainant all the five cheques were presented for encashment and same were returned unpaid due to insufficiency of fund. Therefore, the cheque was not returned because the same was presented after the expiry of its validity. Moreover, the date on which the intimation about the dishonour of cheque was received cannot be treated as to be the date of presentation of such cheques for encashment. Those are all disputed question of facts and as such cannot be gone into at this stage when the accused approached this Court for quashing of the case invoking its jurisdiction u/s 482 of the Code of Criminal Procedure.

Now, having regards to the last and third criminal revision is concerned, according to the case of the complainant total 20 cheques were bounced. Three cheques were issued on 13.11.07, 14.11.07 and 18.11.07, two cheques each, i.e. total 8 cheques were issued on 12.11.07, 15.11.07, 17.11.07 and 20.11.07 and three cheques each, i.e. total 9 cheques were issued on 10.11.07, 16.11.07 and 19.11.07. According to the further case of the complainant that he was intimated by his banker about such dishonour on 5.5.08, therefore, obviously all those cheques were presented for encashment before August 5, 2008, i.e. within the validity of those cheques and the cheques were returned on the ground the "payment stop by the drawer". In such circumstances the penal consequences of Section 138 of the Negotiable Instruments Act is very much attracted. In this regard, reliance may be placed in the case of M/S Modi Cements Limited Vs. Shri Kuchil Kumar Nandi, .

Now, coming to the rest of the grounds pressed into service for quashing of the complaint, viz. the cheques were issued as a security and there was no existing debts or liabilities and there was suppression of facts, those being the pure question of facts the same also cannot be gone into at this stage. The Court while considering the question of quashing of a case has no scope to decide which version of the case is true whether it is the version of the complainant or that of the accused.

However, the contentions of the Petitioner that provisions of Section 219 of the Code of Criminal Procedure has not been complied with, in my opinion the offences punishable u/s 138 of the Negotiable Instruments Act are to be tried in a summary way. Therefore, the provisions of Section 219 of the Code is not at all attracted because there is no question of framing of charge.

In view of above, none of those aforesaid criminal revisions have no merit and accordingly stands dismissed. No costs. Interim order, if any, stands vacated.

Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.