Back
2011 Supreme(J&K) 583
JAMMU & KASHMIR HIGH COURT
Mohammad Yaqoob Mir, J.
Nalam Nageshwar & Co. -Appellant
Versus
Fungicides (India) Ltd. -Resopndent
561-A No.80/2011, Cr.MP No.188/2011
Decided On : 17-12-2011
Mr. Mohammad Akbar Khan for Petitioner.
Mr. Z.A. Shah, Sr. Adv. for Respondent.
The main legal point established is the need for expeditious disposal of cases under Section 138 of the Negotiable Instruments Act and the discretion of the trial court to consider dispensing with personal appearance.
Headnote:
Negotiable Instruments Act - Jurisdiction - Sections 138, 142 - Summary
Fact of the Case:
The respondent company filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner for dishonor of a cheque. The petitioner filed a petition to quash the proceedings, contending that the cheque was issued as security and not for payment.
Finding of the Court:
The court found that the petition lacked merit and dismissed it, along with connected CMP. The trial court was directed to proceed with the case expeditiously and consider the petitioner's motion for dispensing with personal appearance.
Issues: The issues included the nature of the cheque, jurisdiction of the trial court, and the validity of the demand notice.
Ratio Decidendi: The court held that the nature of the cheque and the jurisdiction of the trial court were matters to be determined during trial. It also emphasized the need for expeditious disposal of the case.
Final Decision: The petition was found to be devoid of merit and was dismissed, with directions for expeditious disposal of the case and consideration of the petitioner's motion for dispensing with personal appearance.
2. The respondent company has its registered office at 7/1 Sheikh Bagh Srinagar. The said company, among others, is stated to be dealing in trading and manufacture of fungicides/pesticides. The company has its principle administrative office at H-88, Vidya Palace, South Extension, Part-1, New Delhi-110049 and the company has its off ices/representatives/dealers at various places in India.
3. Petitioner (accused) is alleged to be liable to make payments to the respondent company so is stated to have issued cheque bearing No.647394 on 10.8.2001 for an amount of Rs.17,64,826/drawn on Karnataka Bank Limited, Guntur — 522 003. Respondent company claim to have presented the same before the UCO Bank, Budshah Chowk, Srinagar on 10.8.2001, same had been send for clearance to the drawee bank i.e. Karnataka Bank Limited, Guntur which was returned along with a memo dated 04.09.2001 i.e. cheque has been dishonoured for the reasons "account closed". On the same date cheque has been returned to the complainant.
4. The respondent company is stated to have issued demand notice for the payment and send to the petitioner (accused) under registered postal cover on 13.9.2001. When payment was not made within the period specified, the respondent company filed complaint under Section 138 of Negotiable Instruments Act before the Court of Judicial Magistrate 1st Class(Forest Magistrate), Srinagar on 11.10.2001. On the same date trial court has taken cognizance and process has been issued.
5. Perusal of the trial court record would reveal that right from 11.10.2001 till date progress of the case is still at infancy stage as the petitioner (accused) did not appear. Finally warrant has been issued for procuring the presence of petitioner (accused) on 30.03.2011. It is only thereafter instant petition under Section 561-A Cr. P. C has been filed.
6. Learned counsel for the petitioner (accused) first contended that a blank cheque was issued in favour of the respondent (complainant) as a security, same was not for payment, however, the respondent company has filled blanks of the cheque and has thereafter presented the same for its payment.
7. The plea as raised is a question of fact so can be gone into only during trial. Such ground is not available for exercise of power under Section 561-A Cr. P. C.
8. Next learned counsel projected that the respondent company has committed a fraud because notice to the petitioner(accused) has been given in the new name i.e."Fill Industries Ltd" when the complaint has been filed in the old name of the company i.e. Fungicides (India) Ltd.
9. This contention is of no substance because in the notice as has been issued, copy of which is available on the file, it is clearly indicated that the notice has been issued for Fungicides (India) Ltd (now known as Fill Industries Ltd.). Apparently it has got no effect as no element of fraud at this stage is discernible but still it shall be open for the petitioner (accused) to project before the trial court by way of defence.
10. Next it is contended that the petitioner(accused) had closed account in the Karnataka Bank Ltd. Guntur on 27.12.1999 and same was conveyed to the respondent company.
11. Same again is a question to be gone into during trial because at this stage cheque as is available on the records is shown to have been issued on 10.8.2001. If the petitioner (accused) had closed the account, then cheque should not have been issued on 10.8.2001. In the context of first objection as dealt with hereinabove, it again is a matter to be looked into during trial.
12. Next it is contended that the cheque was a security cheque, even otherwise it was drawn on Karnataka Bank Ltd. Guntur, so could be presented to the same bank.
13. Next it is also contended that assuming that the cheque has been issued on 10.8.2001 at Hyderabad, how could it be presented on the same date before the UCO Bank, Budshah Chow
