Back
IN THE HIGH COURT OF ALLAHABAD
RAM MANOHAR NARAYAN MISHRA, J.
Naveen Kumar Sharma And Another
Versus
State of U.P. and Another – Respondents
Matters Under Article 227 No. 271 of 2023
Decided on : 06-04-2023
Constitution of India,1950 - Article 227 - Negotiable Instruments Act -Section 138 – Criminal Procedure Code,1973 - Section 200 and 202 - Partnership firm - Share - Respondent no. 2 filed a complaint which is registered as Case No., under Section 138 of N.I. Act, District with averment that complainant and respondent no. 2 are working in a partnership firm in name of M/s Naveen Auto road - Complainant and respondent no. 2, both are partners in firm - Firms deals in business of TVS bike spare parts and repairing etc - In profits of firm, share of complainant is 30%, share of wife of respondent no. 2 is 30%, share of respondent no. 2 is 20% and share of Uma Sharma is 20 % - Respondent no. 2 has been directed to transact business on behalf of firm, for last three years no profit was given to complainant and she was avoided by respondent no. 2 in respect of affairs of firm - When she negotiated with respondent no. 2, he asked her to terminate her relations with firm and this was agreed between complainant and partners of firm that Rs. 3,00,000, 00/-will be given to complainant in lieu of her 30% share and profits - Whether petitioner indeed intended to got cheque encashed, all these questions are to be decided during trial and grounds taken in present petition can be raised by petitioner at stage of leading defence - All issues have been addressed by revisional court while dismissing revision petition filed by present petitioner and no interference is warranted in impugned orders passed by learned court below in present petition under Article 227 of Constitution of India which is an extraordinary remedy. [Para 15]
Finding of Court : Petitioner has claimed that said cheque was issued in favour of respondent no. 2 as security cheque, as huge amount was outstanding to respondent no. 2 and for that reason after completing all formalities of disassociation from firm cheque was to be encashed, is dispelled by aforesaid proposition of law laid down by Hon’ble Apex Court in Om Laboratory Pvt. Ltd., wherein it was held that handing over of cheque by way of security per se, would not absolve accused from discharge of liability arising from said cheque, therefore, in light of foregoing discussion, Court finds no good ground to interfere in impugned orders passed by court below which are under challenged in present petition- Impugned orders are in accordance with law and no illegality or irregularity is found therein - In that view of matter, trial court is required to record evidence of parties and arrive at an independent conclusion as to whether an offence is made out under Section 138 of N.I. Act or not.
Result : Petition stands dismissed.
JUDGMENT :
1. Instant petition under Article 227 of the Constitution of India has been filed with following prayer:-
(ii) Issue any other order or direction in the like nature, which this Hon’ble Court may deem fit and proper in the circumstances of the case.
2. I have heard learned counsel for the petitioner, learned counsel for the respondent no. 2 and learned A.G.A. for the State and perused the record.
3. Factual matrix of the case in brief are that respondent no. 2 filed a complaint which is registered as Case No. 496 of 2022 (Smt. Shashi Sharma Vs. M/s Naveen Auto and Another), under Section 138 of N.I. Act, P.S. Kotwali Nagar, District Bulandshahar with averment that complainant and respondent no. 2 are working in a partnership firm in the name of M/s Naveen Auto at Raje Babu road, Bulandshahar. Complainant and respondent no. 2, both are partners in the firm. This firms deals in business of TVS bike spare parts and repairing etc. In the profits of firm, share of complainant is 30%, share of wife of respondent no. 2 is 30%, share of respondent no. 2 is 20% and share of Uma Sharma is 20 %.. The respondent no. 2 has been directed to transact the business on behalf of the firm, however, for last three years no profit was given to the complainant and she was avoided by respondent no. 2 in respect of affairs of the firm. When she negotiated with respondent no. 2, he asked her to terminate her relations with the firm and this was agreed between the complainant and partners of the firm that Rs. 3,00,000, 00/-will be given to the complainant in lieu of her 30% share and profits. This was also agreed between partners that until Rs. 3,00,000,00/-is paid to the complainant, she would keep on receiving the profits and on that count a cheque of Rs. 90,00,000/-was issued by the firm in favour of the complainant dated 15.6.2022 which was signed by respondent no. 2 as authorized signatory of the firm. This cheque was drawn on Canara Bank account of the firm. The complainant presented the cheque on same day at his Bank PNB, Yamunaparm Branch Bulandhshar on her bank account, however, the same was dishnoured and returned on 20.7.2022 with endorsement “account blocked”, thus consequently the cheque got bounced. When she asked about this to respondent no. 2, he could not give any satisfactory answer and misbehaved with her. She sent a demand notice on 25.7.2022 at his address which was received by him on 28.7.2022, however, its wrong reply was sent by them on 2.8.2022, therefore, complainant had no option but to file present complaint for prosecution of the firm and respondent no. 2 for charge under Section 138 of N.I. Act.
4. Learned Magistrate recorded statement of complainant under Section 200 Cr.P.C. and her witnesses under Section 202 Cr.P.C. and passed impugned summoning order whereby the present petitioners were summoned to face trial for charge under Section 138 of N.I. Act.
5. Feeling aggrieved by the impugned summoning order dated 13.10.2022 passed by learned Additional Civil Judge, (Junior Division), Court No. 9, Bulandsh
Point of Law : When cheque is dishonoured for reason account blocked, same constitutes an offence under Section 138 of the N.I. Act, there is divergence of opinion on this issue amongst High Courts.
A person who is not a signatory to the cheque cannot be prosecuted under Section 138 of the Negotiable Instruments Act, 1881, for the offence of dishonour of cheque for insufficiency of funds.
Strict construction of penal provisions, timing of complaint filing, and dishonour reasons under section 138 N.I. Act.
The dishonour of a cheque due to 'Account Closed' falls within the parameters of Section 138 of the N.I. Act, and the presumption under Section 139 applies.
The main legal point established in the judgment is the requirement of a legally enforceable debt or liability for an offence under Section 138 of the N.I. Act, the strict construction of penal provi....
A single complaint for dishonour of multiple cheques is maintainable under Section 138 of the NI Act if they arise from a single transaction, and account blockage does not exempt liability.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
