Virendra Kumar v. Rajesh Kumar), under Section
Facts
HIGH COURT OF JUDICATURE AT ALLAHABAD (Sl.No.16) Court No. - 79 Case :- APPLICATION U/S 482 No. - 26819 of 2024 Applicant :- Rajesh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Deepankar Shukla,Mukesh Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
5. Per contra, learned AGA submits that the signatures on the cheque have not been denied by the applicant herein. Therefore, a presumption shall be drawn in favour of the drawee of the cheque under Section 139 of the N.I.Act and such presumption is rebuttable presumption, which can be rebutted by the applicant during the trial of the case by leading cogent evidence to establish that there was no liability on his part and the instructions with regard to 'stop payment' were issued by the applicant for other reasons than the insufficiency or paucity of funds. Once the signatures are admitted in the cheque, in view of the presumption, the prima facie case is made out against the applicant. Therefore, no interference is called for while exercising the jurisdiction under Section 482 Cr.P.C. 6. 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 the applicant and the opposite party no.2 are the real brothers. It is stated in the complaint that the applicant has taken a loan of Rs. 2,00,000/- from his brother, opposite party no.2 with assurance that the said amount shall be returned within six months but the same was not returned. It was asked by the opposite party no.2, then the applicant has allegedly issued a cheque dated 16.06.2021 in favour of the opposite party no.2, which was presented for encashment on 22.06.2021 and the same was dishonoured for the reason payment stopped by the drawer on 23.06.2021. Thereafter on 05.07.2021, a legal demand notice was issued by the opposite party no.2, which was received by the applicant on 06.07.2021 and despite the receipt of the notice, since the demand notice was complied with, the instant complaint case was filed by the opposite party no.2 within the stipulated period. 7. Therefore, from the aforesaid averments as made in the complaint, a prima facie case has been made out against the applicant. Learned counsel for the applicant has not denied the signatures on the cheque. Accordingly, the presumption under Section 139 of the N.I. Act shall be drawn against the applicant. 8. In the judgment of M/S M.M.T.C. Ltd. (supra) relied upon by the applicant, it has been categorically held that an offence under Section 138 of the N.I.Act would be still made out even when the cheque is dishonoured with the reason 'stop payment'. The aforesaid judgment is in confirmation of the judgment of larger Bench of the Apex Court in Modi Cement vs. Kuchil Kumar Nandi (1998) 3 SCC 249, wherein it has been categorically held that once the cheque is dishonoured for the reason 'stop payment', the offence under Section 138 of N.I.Act is still made out against the drawer of the cheque. In view thereof, the other portion of the judgment of M/S M.M.T.C. Ltd. (supra), in para 249 relied upon by learned counsel for the applicant deals the the rebuttal of the presumption and it is open for the applicant to rebut the presumption by establishing before the trial court that while issuing the 'stop payment' instructions, there were sufficient funds in the account of the applicant to clear the cheque. However, 'stop payment' instructions have been issued by the applicant for the reason that there was no liability on his part and the burden to prove that there was no liability on the part of the drawer of the cheque is to be discharged by the drawer of the cheque during the trial of the case before the trial court. 9. In view thereof, this Court does not find any illegality in the summoning order or the proceedings under Section 138 of N.I.Act drawn against the applicant. The instant application lacks merits and is, accordingly, dismissed. Order Date :- 18.9.2024 Ashish Pd. (Anish Kumar Gupta,J.)
Arguments
1. Heard Sri Deepankar Shukla, learned counsel for the applicant and Sri Rajeev Kumar Singh, learned AGA for the State. 2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning order dated 09.06.2022 as well as the entire proceeding of Complaint Case No.3005 of 2021 (Virendra Kumar vs. Rajesh Kumar), under Section 138 of the Negotiable Instruments Act (in short the 'N.I.Act'), P.S. Auraiya, District Auraiya, pending in the court of Additional Chief Judicial Magistrate, Auraiya. 3. Learned counsel for the applicant submits that there was no liability on the part of the applicant and the cheque in question having been lost by the applicant. The instructions for stop payment were issued by the applicant wherein the cheque in question has been dishonoured. Learned counsel for the applicant further submits that after receipt of legal notice, he has also filed an FIR against the opposite party no.2 with regard to the loss of cheque and its misappropriation by the opposite party no.2. Therefore, learned counsel for the applicant contends that once there was no liability on the part of the applicant and the cheque was dishonoured for the reason 'stop payment', no case under Section 138 of the N.I. Act is made out against the applicant. 4. Learned counsel for the applicant relying upon the judgment of Apex Court in M/S M.M.T.C. Ltd. and another vs. M/S Medchi Chemicals and Pharma P., (2002) 1 SCC 234, submits that if the cheque was dishonoured for the reason 'stop payment' and such instructions for stop payment were not issued because of insufficiency or paucity of funds. If he is able to show that there was sufficient fund in the account to clear the cheque and the 'stop payment' notices have been issued because of other valid causes, then there was no existing debt or liability at the time of presentation of cheque for encashment, no case under Section 138 of the N.I. Act would be made out. Therefore, learned counsel for the applicant seeks quashing of the entire proceeding of the instant case.