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MADHYA PRADESH HIGH COURT
Sujoy Paul, J.
Ramswaroop Tyagi v. Omkarnath Pandey
Miscellaneous Criminal Case No.247 of 2011 (Gwalior);
Decided on 21.8.2015.
Held : These provisions were introduced in order to discourage people from not honouring their commitments by way of payment through cheques. This is trite law that Court should lean in favour of an interpretation which serves the object of the statute.
To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist.
In view of aforesaid judgments, it is clear that it is for the accused to show by leading adequate evidence that in his account there were sufficient fund to clear the amount of cheque and that stop payment notice had been issued because of other valid reasons. Thus, this aspect can be gone into only after recording evidence.
No fault can be found in the order of trial Court. The order of trial Court is in accordance with law wherein it is held that defence of the applicant will be considered after recording of the evidence of the parties. At this stage, no interference is warranted by this Court. (2003)3 SCC 232, AIR 2015 SC 910, AIR 2002 SC 182 and AIR 1998 SC 1057 referred to. (2001)6 SCC 16, (2008)7 SCC 655, (1999)3 SCC 35, (2002)1 SCC 234, (2010)11 SCC 441, 2015 SCC Online 233 and (2008)13 SCC 678 followed. 2009 CrLJ 3454 SC distinguished.
[Para 19
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1. The applicant/drawer has invoked the jurisdiction of this Court under section 482 CrPC to assail the order dated 18.12.2010 whereby the Court below has rejected the application of the applicant preferred under section 245 of CrPC and decided to proceed with the matter on merits. The question needs consideration is whether Court below is justified in rejecting the said application and proceeding with the matter on merits and whether any interference at this stage is warranted by this Court?
2. The said question emerges on the following factual backdrop. The non-applicant/complainant filed a complaint under section 138 of N.I. Act. contending that the present applicant took a loan of Rs.3,00,000/- in April, 2008 from the non-applicant with the promise that same would be refunded within a year. A receipt to that effect was also executed. When the said loan amount was not repaid up to one year, request was made by the non-applicant to the applicant and ultimately a cheque No. 82978 dated 13.5.2009 of Rs.3,00,000/- was given by the applicant to the non-applicant/complainant. The said cheque was deposited by the complainant at State Bank of India, Morena on 25.5.2009. However, the said cheque was returned back with an endorsement that applicant has asked for “stop payment”. The complainant then sent a legal notice and ultimately filed a complaint under the N.I. Act on 17.8.2009. The complaint was registered on 22.9.2009 and summons were issued to the present applicant by the Court below. Subsequently, charges were framed vide Annexure P-2. The applicant preferred an application under section 245 of CrPC stating that since there is no charge against the present applicant, the case against him be dropped. Certain other grounds were also taken. The complainant, in turn, filed his reply to the said application. The trial Court dismissed the said application and decided to proceed with the matter on merits.
3. Shri A.V. Bhardwaj, learned counsel for the applicant submits that as applicant’s cheque book was not traceable, he immediately informed this fact to the police and bank authorities. He requested that if any such cheque from the said cheque book is deposited, no payment be made. Accordingly, the said bank vide Annexure P-8 stopped the payment on the instructions of applicant. To elaborate, Shri Bhardwaj contended that section 138 of N.I. Act is a penal provision. Being a penal provision, it must receive strict construction. section 138 can be invoked when (i) amount of money standing to the credit of that account is insufficient to honour the cheque or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank. By placing reliance on 2009 CrLJ 3454 (SC) (Rajkumar Khurana v. State of (NCT of Delhi and another), it is contended that parameters for invoking the provisions of section 138 of N.I. Act being limited, the refusal on the part of the bank to honour the cheque would not bring the matter within the mischief of provisions of section 138 of the Act.
4. Shri Ashish Saraswat, Advocate for the non-applicant/complainant, supported the order. He submits that Court below has rightly held that at this stage, the applicant cannot be exonerated.
5. No other point is pressed by the learned counsel for the parties.
6. I have heard the parties at length and perused the record.
7. Section 138 of N.I. Act finds place in Chapter XVII of the N.I. Act. The object behind introducing this chapter is to instill faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were introduced in order to discourage people from not honouring their commitments by way of payment through cheques. This is trite law that Court should lean in favour of an interpretation which serves the object of the statute [See: (2003)3 SCC 232 (Goaplast (P) Ltd. v. Chico Ursula D’ Souza)].
8. However, before dealing with the rival contentions, I deem it appos
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