Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1283

IN THE HIGH COURT OF ALLAHABAD
Jyotsna Sharma, J.
Sunil Kumar – Petitioner
Versus
State of U.P. and Another – Respondent
Matters Under Article 227 No. - 9902 of 2022
Decided On : 12-10-2023

Advocates:
Advocate Appeared:
For the Petitioner: Narendra Singh Chahar, Girish Kishor Sharma
For the Respondent: Mohit Kumar

Strict construction of penal provisions, timing of complaint filing, and dishonour reasons under section 138 N.I. Act.

Headnote:
N.I. Act - Dishonour of Cheque - Sections 138, 139 - Summary
Fact of the Case:

The respondent filed a complaint against the petitioner under sections 420, 467, 468, 471 I.P.C. and section 138 N.I. Act, alleging that the accused issued a cheque for the purchase of buffaloes, which was dishonoured. The petitioner challenged the summoning order on the grounds of no legally dischargeable debt, and the complaint being premature.
Finding of the Court:

The court found that the cheque was dishonoured for the reason of 'no such account', and the complaint was filed before the cause of action arose, thus setting aside the summoning order.
Issues: The issues revolved around the dishonour of the cheque, the timing of the complaint, and whether any other offence besides section 138 N.I. Act was made out.
Ratio Decidendi: The court strictly construed the provisions of section 138 N.I. Act and held that the summoning order was bad in law due to the premature complaint and the cheque being dishonoured for reasons not covered under the Act.
Final Decision: The summoning order was set aside, and the trial court was directed to pass a fresh order according to law.

JUDGMENT :

1. Heard Sri Narendra Singh Chahar, learned counsel for the petitioner, Sri Mohit Kumar, learned counsel for the respondent no.2 and learned A.G.A. for the State.

2. This petition has been filed by the petitioner- Sunil Kumar with a prayer that the summoning order dated 20.12.2018 passed by the trial court and the order of the revisional court affirming the same, passed on 24.09.2022, be set-aside.

3. Relevant facts related to this petition are as below:-

The respondent no.2 filed a Complaint Case No.63 of 2017 against the petitioner- Sunil Kumar under sections- 420, 467, 468, 471 I.P.C. and section- 138 N.I. Act with the allegations in nutshell that the accused-petitioner gave an account payee cheque to the complainant-respondent no.2, but the same was dishonoured with the remark that there was no account of that number. After hearing the complainant, the learned trial court took cognizance and issued summons to the accused (the petitioner herein) to face the trial under section- 138 N.I. Act. The accused preferred a revision being Criminal Revision No.40 of 2022, however the same was dismissed and the summoning order was affirmed by the order of the revisional court passed on 24.09.2022.

4. The contention of the petitioner is that the petitioner was not under any legal obligation to discharge any debt or liability and therefore no offence under section 138 N.I. Act is made out. The petitioner is working as Deputy Commissioner of Income Tax and that he cannot engage himself in any business of selling buffaloes. The story given in the complaint is false. Secondly, that notice dated 18.01.2017 was sent to the petitioner, which was replied by him on 23.01.2017. As the mandatory period of 15 days did note lapse between date of receipt of demand notice and filing of complaint case, therefore the essential requirements for constituting the offence under section 138 N.I. Act have not been met. Thirdly, that the orders passed by court below is illegal, inasmuch as, it requires the accused to deposit Rs.16,20,000/- for compounding of the offence. It is said that the orders impugned are illegal and therefore cannot be sustained in law.

5. The contentions of the petitioner are vehemently opposed by the respondents on the premise that the law provides a presumption to be drawn as regards the liability to pay the debt, as provided in section- 118 of N.I. Act. It is argued that the law provides that until contrary is proved, it shall be presumed that every negotiable instrument was made or drawn for consideration.

The provision of Section- 139 of N.I. Act have also been referred to by the respondents which says that it shall be presumed, unless the contrary is proved, that the holder of the cheque received the cheque of the nature referred to in section- 138 N.I. Act for the discharge, in whole or in part, of any debt or other liability.

6. In the light of the above provisions of law, it is argued that the accused-petitioner cannot agitate the matters at this stage. He shall have ample opportunity to put before the court below his side of the defence, on both the counts, as referred to above at appropriate stages of the trial. It is further said that the proceedings under section- 138 N.I. Act are summary in nature and that this is not the stage when such issues could be raised. The matter requires to be heard at the earliest and that, unless some flagrant violation of law is shown, the court is not empowered to interfere in the case in exercise of jurisdiction under Article 227 of the Constitution.

7. Following material things emerge from perusal of the papers:-

The complainant-Om Pal Singh filed a complaint against the accused person under sections- 420, 467, 468, 471 I.P.C. besides section- 138 N.I. Act. The allegation has been that the accused issued a cheque of Rs.13,50,000/-, as the price of 15 buffaloes he bought from the complainant. The aforesaid account payee cheque no.375595 was submitted in the bank for encashment but the sam