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2022 Supreme(UK) 58
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Ravindra Maithani, J.
Rakesh Jain - Petitioner
Versus
State of Uttarakhand and Another – Respondents
Criminal Miscellaneous Application No. 9 of 2022
Decided On : 04-01-2022
Advocate Appeared:
For the Petitioner:Mr. Girish Chandra Lakhchaura, Advocate
For the Respondent: Mr. Lalit Miglani, A.G.A.
The court emphasized the importance of adhering to the timelines and requirements specified in the Negotiable Instruments Act, 1881, and the Code of Criminal Procedure, 1973, for filing complaints and conducting inquiries.
Headnote:
Negotiable Instruments Act - Summoning Order - Section 138 of the Negotiable Instruments Act, 1881 - Section 251 of the Code of Criminal Procedure, 1973 - HMT Watches Limited Vs. M.A. Abida and Another (2015) 11 SCC 776 - Sunil Todi and others vs. State of Gujarat and Another, 2021 SCC Online SC 1174
Fact of the Case:
The respondent filed a complaint under section 138 of the Negotiable Instruments Act, 1881 against the petitioner for dishonour of cheques. The petitioner challenged the summoning order and the entire proceedings of the case on various grounds including time-barred complaint and lack of inquiry under section 202 of the Code.
Finding of the Court:
The court found that the complaint was not time-barred as it was filed within the prescribed timeline. It also held that inquiry under section 202 of the Code was not mandatory as the petitioner's present address was within the jurisdiction of the court. The court dismissed the petition.
Issues: The issues included the validity of the summoning order, time-barred complaint, and the requirement of inquiry under section 202 of the Code.
Ratio Decidendi: The court relied on the provisions of Section 138 and Section 142(1)(b) of the Negotiable Instruments Act, 1881, and the judgments in HMT Watches Limited Vs. M.A. Abida and Another and Sunil Todi and others vs. State of Gujarat and Another to determine the validity of the complaint and the summoning order.
Final Decision: The petition was dismissed by the court.
JUDGMENT : :
Ravindra Maithani, J.
Challenge in this petition is made to the summoning order dated 21.12.2019 passed in Firm Messers Nature Trip Hospitality Service Vs. Rakesh Jain, by the court of Additional Chief Judicial Magistrate, Ramnagar, District Nainital. (for short “the case”) and the entire proceedings of the case.
2. Facts are in a very short sphere. The respondent no. 2, the complainant filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (“the Act”) against the petitioners. According to it, the petitioner took Rs. 12 Lakhs loan from the complainant on the assurance that it would be returned within three months. The complainant advanced Rs. 11,50,032/- as loan to the petitioner. In repayment of the loan taken, the petitioner gave two cheques dated 06.07.2019 and 20.07.2019 of Rs. 5 Lakhs and Rs. 6 Lakhs respectively to the complainant. But, the cheques when presented were dishonoured. Finally, on 14.10.2019, notices were issued to the petitioner, which were served on him on 16.10.2019 and 22.10.2019.
3. The petitioner did not pay the amount within 15 days from the date of receipt of the notices. Thereafter, the complaint was filed on 30.11.2019. Cognizance was taken in the case. Petitioner was summoned. He appeared also in the case. On 12.11.2021, accusation was read over to the petitioner under section 251 of the Code of the Criminal Procedure, 1973 (for short ‘the Code’). Now, challenge is made to the summoning order as well as to the entire proceedings of the case.
4. Heard learned counsel for the parties and perused the record.
5. Learned counsel for the petitioner would submit that the complainant did not file complaint with the clean hands. He would raise the following points in his submission;
(1) The cheques in question were given as security by the petitioner. Subsequently, the amount was repaid on 20.06.2019.
(2) Despite the money having been paid, the complainant presented the cheques for payment, but, the petitioner directed the bank for stop payment.
(3) The complaint is time-barred because notices were issued on 14.10.2019 and 15 days time since then expires on 29.10.2019. The complaint has been filed beyond a month from 29.10.2019.
(4) Inquiry under section 202 of the Code has not been made in the case. Such inquiry should have been conducted in view of the fact that the petitioner is a resident of a district outside the jurisdiction of the court.
6. This is a petition under section 482 of the Code. In case, prima facie, case is made out, no interference is warranted in this proceedings. Factual aspects may not be examined to appreciate the controversy. Such matters are to be left for decision during trial. The date of cheques is 06.07.2019 and 20.07.2019. Reference has been made to annexure-4, an authority allegedly issued by one S.S. Negi directing a Prakash Pathak to receive payment. This authority has purportedly been addressed to Mr. Jain. Based on it, it is argued that, in fact, one of the partners of the complainant’s firm, Sandhya Negi had authorized her husband S.S. Negi to receive the payment and S.S. Negi, in turn, authorized Mr. Pathak. Authority given by Sandhya Negi has been referred to as Annexure-4. But, according to this annexure-4, a Ms. Sandhya Negi had authorized S.S. Negi to sign an agreement, not to receive the money. Even otherwise, according to receipt annexure-5, the money was allegedly received by someone on 20.06.2019, As stated, the cheques in question have been issued in the month of July, 2019. Insofar as, giving the cheques and security is concerned, it does not absolve the drawer of the cheque from the consequence of offences under section 138 of the Act.
7. In the case of HMT Watches Limited Vs. M.A. Abida and Another (2015) 11 SCC 776, the question of cheques having been given in security was considered and in paragraph 10 of the judgment, the Hon’ble Supreme Court observed “whether the cheques were given as security or not, or whether there was outstand
