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ALLAHABAD HIGH COURT
Vishnu Chandra Gupta, J.
Achche Lal Yadav - Appellant
Versus
State of U.P and Anr. - Respondent
Cr. Misc. No. - 6022 of 2013
Decided On : 08-09-2014
N.I. Act - Quashing of Proceedings - Section 138 - 138, 139, 141, 142(a), 145 - The court discussed the provisions of the Negotiable Instruments Act, 1881, particularly sections 138, 139, 141, 142(a), and 145, and their interpretations in relation to the complaint filed under section 138 of the N.I. Act. The court emphasized the documentary evidence required for constituting an offence under section 138, the presumption under sections 118 and 139, and the authority to file a complaint on behalf of a corporate body. The court also addressed the burden of proof on the accused and the curability of certain defects in the complaint.
Fact of the Case:
The complainant, as Director of a company, filed a complaint under section 138 of the N.I. Act against the petitioner for dishonor of a cheque. The petitioner sought quashing of the proceedings citing various grounds including non-compliance with amended provisions of section 202 Cr.P.C., lack of authority of the complainant to file the complaint, and absence of evidence of the legal notice sent to the petitioner.
Finding of the Court:
The court found that the grounds of attack against the order of summoning were not sustainable, emphasizing the documentary evidence required for the offence under section 138, the authority to file a complaint on behalf of a corporate body, and the burden of proof on the accused.
Issues: The issues involved the legality of the impugned orders, compliance with amended provisions of section 202 Cr.P.C., authority of the complainant to file the complaint, and the sufficiency of evidence regarding the legal notice.
Ratio Decidendi: The court held that the offence under section 138 of the N.I. Act is normally based on documentary evidence, and the burden lies on the accused to establish non-existence of any liability of payment. The court also emphasized the curability of certain defects in the complaint, particularly the lack of authorization to file the complaint on behalf of the company.
Final Decision: The petition was found to be without merit and was accordingly dismissed.
Vishnu Chandra Gupta,J.
1. Heard Shri Jagrit Sharma, learned counsel for the petitioner, Shri Sudeep Kumar, learned counsel for the complainant and the learned AGA.
2. By means of the present petition under section 482 Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), the petitioner has prayed for quashing the entire proceeding of Complaint Case No. 1991 of 2012(earlier Complaint Case No.1217 of 2011), Sabyasachi Sikdar Vs. Achche Lal Yadav, under section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I. Act") pending in the court of Additional Chief Judicial Magistrate-IV, Lucknow and also the orders dated 9.8.2012 and 2.11.2013 passed by the Additional Chief Judicial Magistrate-I, Court No. 25, Lucknow, whereby the petitioner has been summoned to face trial and issue of process under Section 138 of the N.I. Act., P.S. Vikas Nagar, District Lucknow.
3. Facts relevant for deciding this petition are that opposite party no. 2 Sabyasachi Sikdar being Director of M/s Cropaid Marketing Private Ltd. filed aforesaid complaint case under Section 138 of N.I. Act against petitioner Achche Lal Yadav, who is Proprietor of firm "M/s Natraj Fertilizer" alleging therein that opposite party no.2 issued a cheque amounting to Rs. 1,62,838/- on 9.5.2011 having cheque no.041157 of Union Bank of India, Chandawak, District Jaunpur in favour of the company "Cropaid Marketing Pvt. Ltd" towards full and final payment of the outstanding amount along with interest. The cheque in question was presented by opposite party no.2 for clearing in the State Bank of India, Vikas Nagar, Lucknow, but the same was dis-honoured by the Union Bank of India, Chandawak, Jaunpur on account of insufficient funds. The communication has been made by the State Bank of India, Vikas Nagar, Lucknow vide its memo letter dated 10.5.2011. A registered legal notice was issued to the petitioner by the opposite party no. 2 through his counsel on 6.6.2011 demanding the amount under the cheque within fifteen days. Telegram was also sent on 7.6.2011 to the petitioner demanding the payment under the cheque in question. But inspite of it, the amount of cheque has not been paid by the petitioner to the opposite party no.2. Consequently, the complainant has filed a complaint under section 138 read with section 142 of the N.I. Act on 23.7.2013 before the learned Additional Chief Judicial Magistrate-III, Court No 27, Lucknow along with an affidavit annexing therewith relevant documents.
4. The learned Magistrate after considering the allegations of complaint, affidavit and documents filed passed the impugned order summoning the accused applicant to face the trial under section 138 of NI Act fixing the date of appearance on 24.9.2011. Aggrieved by the aforesaid order, the petitioner has filed the present petition on the following grounds: -
(I). That the impugned orders are not legally sustainable due to non compliance of amended provisions of section 202 Cr.P.C. as held in the judgment of Apex Court rendered in Petition (s) for Special Leave to Appeal (Crl.) No. (s) 9098 of 2012, National Bank of Oman Vs. Barakara Adbul Aziz and another.
(II). That cheque in question has been issued in the name of Company "Cropaid Marketing Pvt Ltd.". The complaint has been signed and presented by opposite party no. 2, Sabyasachi Sikdar, who is neither payee or holder in due course of cheque nor is a person empowered by a resolution of Board of Directors to file complaint.
(III). That complaint filed by the opposite party no. 2 is barred by sections 9, 141 and 142 (a) N.I. Act as held in the judgment of Apex Court delivered in Criminal Appeal No.838 of 2008 Aneeta Hada Vs. M/s Godfather Travels and Tours Pvt. Ltd., with Criminal Appeal No.842 of 2008, Anil Hada Vs. M/s Godfather Travels and Tours Pvt. Ltd., decided on 27.4.2012.
(IV). That opposite party no.2 has not filed any receipt of registered post of the postal department along with the complaint or the l
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