Rakesh Kanodiya vs State of U. P. - 2023 Supreme(All) 483

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 483

IN THE HIGH COURT OF ALLAHABAD
SADHNA RANI (THAKUR), J.
Rakesh Kanodiya - Applicant
Versus
State of U.P. - Opposite Party
Application U/S 482 No. 21833 of 2022
Decided On : 14-02-2023

Advocates Appeared:
For the Applicant : Himanshu Srivastava, Siddhartha Srivastava.
For the Opposite Party : G.A., Murari Lal Jain.

Headnote:
Criminal Procedure Code,1973 - Negotiable Instrument Act - Sections 138,139 and 118 - Limitation Act, 1963 - Section 26 – Recovery of money – Dishonour of cheque – Held, Applicant also drew attention of this court towards judgement Apex held that dishonoured cheque had not been issued for a legally enforceable debt and that the complaint was barred by time, can be decided only after the evidence is adduced it being a mixed question of law and fact - Apex Court in this judgement again mentioning Sections 118 and 139 of Negotiable Instrument Act opined that it is a presumption that until contrary is proved, every negotiable instrument was drawn for consideration and that it shall be presumed unless contrary is proved that the holder of a cheque the cheque of the nature referred to in Section 138 Negotiable Instrument Act for discharge, in whole or in part, any debt or other liability - judgement placed before the court by learned counsel for applicant itself supports the arguments of learned counsel for the opposite party no. 2 that whether debt was time barred or not, would be decided at the time of evidence and that unless contrary is proved, of course after adducing the evidence of the parties, the presumption is that every negotiable instrument was drawn for consideration and that holder of the cheque received the cheque of nature referred to in Section 138 of Negotiable Instrument Act for discharge of debt or other liability - Application under Section 482 Cr.P.C. is, thus, dismissed – Ordered Accordingly

JUDGMENT :

1. Heard learned counsel for the applicant, learned counsel for the opposite party no. 2 and perused the record.

2. By means of this application prayer is made to quash the summoning order dated 10.01.2022 and the entire proceedings of Case No. 3843 of 2020 (Inspirationj Publication Vs. Rakesh Kanodiya) pending in the court of Additional Court, Court No. 2, Agra under Section 138 of Negotiable Instrument Act, Police Station Kotwali, District Agra.

3. It is argued by the learned counsel for the applicant that the applicant is the whole seller of books in District Deoria whereas the opposite party no. 2 is the publisher of the books in District Agra. On 31.12.2014 a written understanding was executed between the two for the year 2015 regarding terms of purchase and discount on purchase. In this regard, two CTS account payee cheques were handed over to Pradeep Sehgal, authorised agent of opposite party no. 2. In the year 2015, the applicant made gross purchase of Rs.4,51,207.25 from opposite party no. 2 and paid Rs.3,71,612.25 bearing the net purchase consideration after deducting the discount and all the legal dues of opposite party no. 2 were cleared by the applicant.

4. However, the applicant received a notice dated 28.01.2021 sent by the opposite party no. 2 through his Advocate whereby an outstanding dues of Rs.1,79,885/- was shown towards the applicant with due amount of Rs.79,595.25 and with interest of Rs.1,00,290/- till 05.01.2021. The notice was replied by stating that Rs.79,595.25 were adjusted against the discount, even then the opposite party no. 2 filed a complaint under Section 138 N.I. Act on 10.03.2021 showing that a cheque of Rs.1,79,885/- issued by the applicant was dishonoured by the bank on 13.01.2021 because of 'insufficient funds'.

5. In fact, no cheque of this amount was ever issued to opposite party no. 2. This was the one cheque out of two CTS account payee cheques, which were given to Pradeep Sehgal, the authorised agent of opposite party no. 2 in the year 2015, which is clear from the endorsement of the receiving of cheque with date 17.01.2015 written under the signatures of Pradeep Sehgal, appended at page21 of the paper book. All other cheques issued by the applicant in the year 2015 were encashed from the bank, thus, there was no amount in the bank account of the applicant, is false. The opposite party no. 2 has misused the cheque. Amount claimed is with interest while the interest was not to be paid and the net amount was already adjusted with the opposite party no. 2 and nothing was due towards the applicant. This cheque was issued to the opposite party no. 2 in the year 2015. Otherwise also, this amount was of the year 2015, thus, it was a time barred amount. As per Section 26 of the Limitation Act, 1963 for recovery of money the limitation is of three years and as per explanation of 138 Negotiable Instrument Act for the purpose of this section 'debt or other liability' means a legally enforceable debt or other liability. Thus, the time barred recovery does not come within the legally enforceable debt or other liability. Hence, the summoning order and the entire proceedings claiming to be against the law are prayed to be quashed.

6. Learned counsel for the opposite party no. 2 submitted that the handing over the cheque to the authorized agent of opposite party no. 2 and the signatures on the cheque are admitted and as per the record, this cheque has been dishonored by the bank. The defence of the applicant is not to be seen at the time of the prayer of quashing the summoning order and the entire proceedings of the complaint and limitation does not apply on Section 138 Negotiable Instrument Act. Whether the interest of due amount was paid or not is also not to be seen at this stage. The attention of the court is drawn towards judgement in A.V. Murthy Vs. B.S. Nagabasavanna, 2002 (1) Supreme 517, wherein the Apex Court held that under Section 118 of the Act, there is presumption that until the

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