MUZAHIR HUSSAIN vs STATE OF UTTAR PRADESH

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(All) 1532

[2008(8) ADJ 261]
ALLAHABAD HIGH COURT
BEFORE : R.K. RASTOGI, J.
MUZAHIR HUSSAIN .....Applicant
Versus
STATE OF U.P. AND ANOTHER ...Opposite Parties
(Criminal Misc. Application No. 5336 of 2007, decided on 18th July, 2008)

Advocates:
Counsel :
M.P.S. Chauhan for the Applicant; J.P. Singh, A.G.A. for the Opp. Parties.

Headnote:(A) Negotiable Instruments Act, 1881—Sections 138 and 142—(Indian) Penal Code, 1860—Section 420—Criminal Procedure Code, 1973—Sections 482, 200 and 219—Dishonour of Cheque—Complaint—Summoning order—Quashing of—Cheques returned back by Bank with remarks “Insufficiency of funds”—Demand notice served—Non payment of cheques amount within stipulated period—Complaint filed—Magistrate found that prima facie offence made out—A factual plea cannot be adjudicated at this stage—Payee has got a right to send cheque to Bank for a number of times within its validity period—Limitation period for sending demand notice would start only from date of receipt of last information regarding non-payment of cheque—Once demand notice issued after dishonour of cheque—Legal process for offence under Section 138 of the Act is set into motion—Then payee of cheque cannot get any fresh period of limitation by sending cheque again for payment—Limitation period starts from date of last dishonour—When notice sent by registered post—Mere omission to mention date of its service upon accused for want of knowledge on that point—Would not render complaint to be not maintainable—If no period mentioned in notice—Notice shall not be invalid on that account—Summoning order upheld. [Paras 10, 12, 15, 16, 17, 18 and 21]
       (B) Negotiable Instruments Act, 1881—Sections 138 and 142—Dishonour of cheque—Complaint—Maintainability of—When fact of service of notice upon accused has not been pleaded in complaint—Complaint would not be maintainable—In present case fact of receipt of notice by accused was specifically pleaded in complaint—Hence, complaint maintainable. [Para 15]
       (C) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Demand notice—Service of—If postal acknowledgment had not been received by complainant—So if actual date of service of notice could not be mentioned in complaint—That would not render complaint not maintainable. [Para 16]
       (D) Negotiable Instruments Act, 1881—Section 138(c)—Demand notice—Service of—If no period is mentioned or some other period is mentioned in notice—Demand notice shall not be invalid on that account—Hence, demanding cheque amount within 7 days would not invalidate the notice. [Para 17]
       (E) Negotiable Instruments Act, 1881—Section 138 and 142—Complaint—Presentation of—Held, mere presentation of complaint at an earlier date need not necessarily render complaint liable to be dismissed—Or confer right upon accused to absolve himself from criminal liability for offence committed—Only restriction upon Magistrate as he cannot take cognizance of offence. [Para 19]
       (F) Criminal Procedure Code, 1973—Section 219—Joint trial—Permissibility of—If offences are of same kind—Punishable with same punishment under same section—Court can try three offences of same kind committed within a year together—In present case both cheques were issued with a gap of two months only—They were dishonoured also in the same year—Hence, these is no legal bar to joint trial of case in respect of cheques in question. [Para 21]

JUDGMENT

Hon’ble R.K. Rastogi, J.—This is an application under Section 482, Cr.P.C. to quash the proceedings of complaint case No. 6424 of 2006, Rajani Traders v. Muzahir Hussain under Section 138 Negotiable Instruments Act, P.S. Banna Devi District Aligarh and the summoning order dated 7.11.2006 passed by the C.J.M. Aligarh in the above complaint.

2. The facts giving rise to this application under Section 482, Cr.P.C. are that the complainant opposite party No. 2 had filed the aforesaid complaint against the accused applicant in the Court of C.J.M., Aligarh on 2.9.2006 with these allegations that the accused had purchased cloth from the shop of the complainant opposite party No. 2 on 31.3.2006. In respect of the above transaction, bill No. 2742 had been issued to the accused applicant; and for payment of that bill, the accused applicant issued Cheque No. 868315 dated 29.5.2006 for Rs. 26,000/- drawn on Allanabad Bank, Aligarh Muslim University Branch, Aligarh, and another Cheque No. 868316 dated 29.7.2006 for Rs. 9808/- drawn on the same Bank. The complainant deposited the first Cheque in his Account in the Bank of India but the Cheque was returned back for insufficiency of funds as per information received by’ him from the Bank of India on 15.6.06. The second Cheque was also deposited in the Bank but it was also returned back on 11.8.06 with the same information . Then he gave a notice to the accused on 12.8,06 by registered post requiring the accused to pay the amount by 15.8.06 alongwith 24% interest per annum. It was further provided that in case of failure to pay the amount, the complainant shall file a case under Section 420, I.P.C. The notice was received by the accused applicant, and he orally told the complainant that sufficient amount has been deposited in his Account and so the Cheque should be again sent for payment. Then , the complainant again sent the first Cheque for payment on 22.8.06 but it was again returned back on 25.8.06 on the same ground of insufficiency of funds. Then the complainant again issued a notice to the accused applicant on 26.8.2006 mentioning the fact of dishonour of both the Cheques and asked him to pay the entire amount of both the Cheques alongwith 24% interest with late fee charges and the charges of dishonour of the Cheques. This notice was sent by registered post as well as under Certificate of Posting. The registered notice was received by the accused but he did not pay any amount. The accused had also given in writing on 31.3.2006 that he had received bill No. 2742 for Rs. 35,808/- from the complainant and that he was making payment of above amount through the aforesaid two Cheques, referred to above. Thus, he had apparently committed fraud with the complainant, and therefore it was prayed that action should be taken against him under Section 138 of Negotiable Instruments Act and under Section 420, I.P.C.

3. The complainant examined himself before the Magistrate under Section 200, Cr.P.C. and also filed copy of bill No. 2742, the aforesaid two Cheques, copy of the notice and the receipt of its registration.

4. After perusal of the record, the learned Magistrate was of the view that prima facie a case under Section 138 of Negotiable Instruments Act appeared against the accused. He, therefore, passed the order summoning the accused applicant for the above offence. Aggrieved with that order, the accused filed this application under Section 482, Cr.P.C.

5. The applicant, in his affidavit, filed in support of the application under Section 482, Cr.P.C., denied the above transaction of purchase of cloth from the shop of the complainant and alleged that the accused applicant had taken loan of Rs. 15,000/- from the Capital Instalment Shop No. 22 Rasalganj, opposite Malakhan Singh Hospital, Aligarh, and the opposite party No. 2 is owner of the aforesaid Finance Company; the applicant had given 10 post dated cheques No. 868311 to 868320 to the complainant, as security, for repayment of the above

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2008 Supreme(All) 1532

[2008(8) ADJ 261]ALLAHABAD HIGH COURTBEFORE : R.K. RASTOGI, J.MUZAHIR HUSSAIN .....ApplicantVersusSTATE OF U.P. AND ANOTHER ...Opposite Parties(Criminal Misc. Application No. 5336 of 2007, decided on 18th July, 2008)

Cases Referred (2)

[2008(8) ADJ 261]
ALLAHABAD HIGH COURT
BEFORE : R.K. RASTOGI, J.
MUZAHIR HUSSAIN .....Applicant
Versus
STATE OF U.P. AND ANOTHER ...Opposite Parties
(Criminal Misc. Application No. 5336 of 2007, decided on 18th July, 2008)