High Court
Legal Reasoning
HIGH COURT OF JUDICATURE AT ALLAHABAD (Sl.No.25) Court No. - 79 Case :- APPLICATION U/S 482 No. - 21086 of 2024 Applicant :- Hariom Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Mohan,Upendra Mani Tripathi Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
1. Heard Sri Ram Mohan, learned counsel for the applicant and Sri Prem Prakash Tripathi, learned AGA for the State. 2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the impugned order dated 13.05.2024 passed by the Additional Sessions Judge, Court No. 29, Agra in Criminal Revision No. 71 of 2024 as well as the impugned order dated dated 03.01.2024 and the entire proceeding of Complaint Case No. 6906578 of 2018 (M/s. Akshi Sales vs. Hariom Sharma), under Section 138 of Negotiable Instruments Act (in short the 'N.I. Act'), P.S. Hari Parvat, District Agra. 3. Learned counsel for the applicant submits that the applicant is an accused in the proceeding under Section 138 of the N.I.Act initiated by the opposite party no.2 and the trial of the said complaint case is still pending. In the meantime, on an application under Section 143-A of the N.I. Act moved by the opposite party no.2, the trial court vide order dated 03.01.2024 has directed the applicant herein to deposit the 10% of the cheque amount. Against the aforesaid order, the applicant herein has filed the Criminal Revision No. 71 of 2024, which has also been rejected vide order dated 13.05.2024. Learned counsel for the applicant further submits that though the cheque was issued by the applicant, however after issuance of cheque, the entire payment was already made by the applicant to the opposite party no.2. Therefore, there was no liability on the part of the applicant. Since there was no liability, then the trial court has not applied its mind while passing a direction for deposit of 10% of the cheque amount. Therefore, learned counsel for the applicant seeks quashing of the order dated 03.01.2024 passed by the trial court allowing the application under Section 143-A of the N.I. Act filed by the opposite party no.2 as well as the order dated 13.05.2024 passed the Revisional Court rejecting the criminal revision filed by the applicant. 4. Per contra, learned AGA submits that Section 143-A of the N.I. Act takes care of all eventualities and the same is a complete code in itself. Once it is admitted by learned counsel for the applicant that the cheque was issued by him, the presumption under Section 139 of the N.I.Act has been drawn against him. Therefore, prima facie the liability of the cheque amount is presumed to be there against the applicant. However, such presumption is a rebuttable presumption, which can be rebutted by the applicant during the trial of the case by leading the cogent evidence before the trial court. Therefore, no interference is called for in exercise of of jurisdiction under Section 482 Cr.P.C. as there is no illegality in the order dated 03.01.2024 passed by trial court as well as the order dated 13.05.2024 passed by the Revisional Court. 5. Having heard the rival submissions made by learned counsel for the parties, this Court has carefully gone through the record of the case. From the record, it is apparent that there was a business transaction between the applicant and the opposite party no.2 and in discharge of his liability, the amount to be paid by the applicant, a cheque dated 09.08.2018 was issued for a sum of Rs.2,13,670, which was dishonoured on presentation vide dishonour memo dated 05.09.2018 for the reasons "fund insufficient." Thereupon a legal notice was issued by the opposite party no.2, which was not complied with by the applicant and thereafter, the complaint under Section 138 of the N.I. Act was filed. Therefore, once the issuance of cheque is admitted by the applicant, the presumption under Section 139 of the N.I. Act shall be drawn against the applicant and it shall be presumed that the said cheque was issued by the applicant in discharge of his legal liability towards the opposite party no.2. Therefore, a prima facie case against the applicant is made out. However, the aforesaid presumption is a rebuttable presumption, which can be rebutted by the applicant during the trial of the case by leading the cogent evidence before the trial court. The contention of the applicant that he had already made the payment of the cheque amount is required to be established by him before the trial court. 6. Section 143 of the Negotiable Instruments Act reads as under: "143. Power of court to try cases summarily- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. (2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. 7. From the plain reading of the aforesaid provisions of Section 143-A, it is apparent that it takes care of all eventualities. Once a prima facie case is made out against the applicant, the trial court is empowered to pass an appropriate direction requiring the deposit to be made by the accused to the extent of 20% of the cheque amount. However, in the instant case, the trial court having considered the circumstances has directed to deposit only 10% of the cheque amount. Ultimately if the applicant succeeds in the trial by establishing the fact that there was no liability on the part of the applicant herein, then the trial court is empowered to direct while rejecting the complaint to refund the amount so paid to the opposite party no.2. 8. In view of the prima facie case made out against the applicant and also in view of the presumption under Section 139 of the N.I.Act, this Court does not find any illegality in the order dated 03.01.2024 passed by the trial court and the order dated 13.05.2024 passed by the Revisional Court. Accordingly, the instant application under Section 482 Cr.P.C. is dismissed. Order Date :- 3.9.2024 Ashish Pd. (Anish Kumar Gupta,J.)