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2013 Supreme(P&H) 267
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Ranjit Singh
Criminal Misc. M.No. 5325 of 2012
Piyush Bharat Saini
v.
Paras Gupta
{Decided on 11/03/2013}
For the Petitioner:Mr. R. S. Cheema, Sr. Advocate with Ms. Tarannum Cheema, Advocate, Amicus-curiae. Mr. Praveen Chauhan, Advocate.
For the Respondent (in Crl. Misc. M No.15609 of 2012):
Mr. Saurav Khurana, Advocate.
For the Respondent (in Crl. Misc. M No.23724 of 2012):
Mr. Sanjeev Kumar, Advocate.
For the Respondent (in Crl. Misc. M Nos.5325, 5326 and 5327 of 2012):
Mr. Varun Gupta, Advocate.
Headnote:Dishonour of Cheque--Quashing--Not to be done on the ground that provisions of S.202 Cr.P.C. were not applied where accused person sessions, outside the jurisdiction of Magistrate.
(A) Criminal Procedure Code, 1973, S.202--Dishonour of Cheque--Enquiry as envisaged under the amended provisions of Section 202 Cr.P.C. may not necessarily be insisted upon in those cases tried under the Act where the accused person resides outside the jurisdiction of the Magistrate is reasonable--Negotiable Instrument Act, 1881, S.138.
However, the ratio of law laid down in S.K.Bhowmik's case (supra) and other line of decisions still will hold good and can not be taken to have been diluted in any manner in view of the observations made above--I am inclined to hold that the strict requirement of Section 202 Cr.P.C. may not be t he need in cases under the Act as that may tend to negate the very purpose of expeditious disposal of the cases under the Act and may also nullify the effect of special provisions made under the Act--The plea of the petitioner in all these petitions to quash the complaints and the summoning orders, thus, can not be accepted. (Para 34)
(B) Criminal Procedure Code, 1973, S.202 & 482--Dishonour of Cheque--Quashing--Not to be done on the ground that provisions of S.202 Cr.P.C. were not applied where accused person sessions, outside the jurisdiction of Magistrate--Negotiable Instrument Act, 1881, S.138.
It is noticed that Section 142 of the Act makes a provision for taking cognizance of offences--As per this Section, no Court shall take cognizance of offence punishable under Section 138 of the Act except upon a complaint in writing made by the payee or the holder of the cheque, then such complaint is required to be made within one month. Section 143 of the Act makes a provision for trying the cases summarily--Section 144 of the Act makes a provision for modes of service of summons and summons can, thus, be served on the accused or witness at a place where he ordinarily resides or carry on business--Then there is a provision for giving evidence on affidavits--As per Section 146 of the Act, Bank's slip is made as a prima-facie evidence, denoting that the cheque has been dishonoured from which a presumption of the fact of dishonour of cheque can be made, unless it is disapproved--There is also a special provision for compounding of offences at any stage--These special provisions would certainly make out a case for some special treatment of cases under the Act.
Mr. Ranjit Singh, J.:- Whether the rigors of amended provisions of Section 202 Cr.P.C, laying down a requirement of holding an enquiry, where the person sought to be summoned is outside the jurisdiction of the Court, would apply in the cases of offences under Section 138 of the Negotiable Instruments Act (for short, “the Act”), is an important issue arising in this bunch of Criminal Misc. Petitions filed by the petitioner.
2. The petitioner in these cases has challenged the summoning order primarily on the ground that his summoning was ordered in these cases without holding an enquiry under Section 202 Cr.P.C and hence, prayer is made for quashing of the said summoning order impugned in these different Criminal Misc. M Nos.5325, 5326 and 5327 of 2012 (Piyush Bharat Saini Vs. Paras Gupta), 15609 of 2012 (Peeyush Bharat Saini Vs. Pran Bhayana) and 23724 of 2012 (Peeyoosh Bharat Saini Vs. Raksha Singhal).
3. This Court in the case of S.K.Bhowmik Vs. S.K.Arora and another, 2007 (4) RCR (Criminal) 650, has held the provisions of Section 202 Cr.P.C. to be mandatory and, thus, has viewed that for summoning a person accused in the complaint without holding enquiry, as envisaged under Section 202 Cr.P.C., would be violative of the amended provisions of Section 202 Cr.P.C. The petitioner has, thus, relied upon the ratio of this judgement to plead quashing of the summoning orders on this ground in the abovesaid petitions. It is now to be examined if the rigors of amended provisions of Section 202 Cr.P.C. would apply in the case of offences under Section 138 of the Act as well.
4. Incidentally, Mr.R.S.Cheema, learned Senior counsel of this Court, who was the counsel for the petitioner in S.K.Bhowmik’s case (supra) was present, when these petitions came up for hearing. The Court thought it appropriate to request the senior counsel to assist the Court in these cases as amicus-curiae. The counsel readily accepted the task and has rendered very valuable assistance to the Court.
5. Before taking up this purely legal issue arising in these cases, it would be essential to notice the facts just to get the hang of the issue agitated in these petitions. For this purpose, the facts are noticed from Criminal Misc. M No.5325 of 2012.
6. The petitioner in these cases is a resident of Delhi. A criminal complaint is filed against him at Kurukshetra. Respondent complainant has filed this complaint under Section 138 of the Act. Allegations against the petitioner are that he being the proprietor of the firm Education Wise had received a sum of Rs.15 lacs for procuring a seat of Post-graduation in Medical Science. On his failure to arrange the seat, he issued a cheque for returning the amount to the complainant from his account maintained in Axis Bank. He then again issued a cheque from HDFC Bank at Delhi. These cheques, when presented, were dishonoured in March 2010 and October 2010 respectively. The complainant contacted the petitioner again, who issued a cheque dated 15.2.2011 for a sum of Rs. 5 lacs as a part payment. This cheque was drawn at ICICI Bank, Shalimar Bagh Branch, New Delhi. This cheque, when presented at Kurukshetra, was returned on 12.5.2011 with the remarks, “funds insufficient”. On this basis, the present complaint was filed against the petitioner. The petitioner has been summoned for an offence under Section 138 of the Act vide order dated 18.7.2011. The petitioner accordingly has approached this Court for quashing the complaint and the summoning order mainly on the ground that he has been summoned without following the procedure laid down in amended Section 202 Cr.P.C.
7. Similar are the facts in the other connected petitions, where the petitioner is accused of having issued cheque drawn at ICICI Bank, New Delhi, which was returned with the same remarks but on some different dates. The petitioner accordingly would plead for quashing of said complaints and the summoning orders as well primarily on the same ground.
8. In S.K.Bhow
