Balbir v. Bandana), under Section
Case Details
Neutral Citation No. - 2024:AHC:189531 Court No. - 79 Case :- APPLICATION U/S 482 No. - 40121 of 2024 Applicant :- Vandana Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Adarsh Singh,Indra Raj Singh,Sandeep Kumar Dubey Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J. 1. Supplementary affidavit filed on behalf of the applicant is taken on record.
Legal Reasoning
2. Heard Sri Indra Raj Singh, learned counsel for the applicant as well as Sri Brijesh Kumar Dwivedi, learned A.G.A for the State and perused the record. 3. The instant application has been filed for quashing the impugned order dated 01.04.2022 passed by learned A.C.J.M., Kasya, Kushinagar as well as entire proceedings of Complaint Case No.4077 of 2021 (New No.12575 of 2024) (Balbir Vs. Bandana), under Section 138 N.I. Act, Police Station Ahirauli Bazar, District Kushinagar. 4. Contention of learned counsel for the applicant is that the cheque in question was a missing cheque regarding that applicant has already intimated to police on 04.08.2021 and also to Bank on same date. It is further submitted by learned counsel for the applicant that the alleged cheque in question cannot be said to be issued in discharge of liability as same was a missing cheque. In support of his contention learned counsel for the applicant has relied upon the judgement of Apex Court in Raj Kumar Khurana Vs. State of (NCT of Delhi) and anr. in Criminal Appeal No.415 of 2009. 5. Sri Brijesh Kumar Dwivedi, learned A.G.A. has vehemently opposed the prayer made by learned counsel for the applicant and submitted that from the perusal of the intimation to Bank, it appears that information regarding the missing of cheque was given to the Bank at 11:46 a.m. on 04.08.2021 itself that is after presentation of cheque before the Bank. It is further submitted by learned A.G.A. that pleas raised by learned counsel for the applicant are his defense that can be considered during trial. 6. Considering the rival submissions of learned counsel for the parties and on perusal of record, it appears that as per the complaint cheque in question was given by the applicant to the complainant at 8:39 p.m. on 03.08.2021, which was presented by the complainant on 04.08.2021 and same was returned to the complainant with the endorsement 'payment is stopped'. So far as the contention of learned counsel for the applicant that the cheque in question was missing cheque and he has intimated to the Bank on 04.08.2021, appears to be misconceived because from the perusal of the intimation to Bank, it appears that the cheque in question was alleged to lost in the night of 03/04.08.2021 and intimation to stop the payment of cheque in question was made to the Bank at 11:46 a.m. on 04.08.2021. Even otherwise, the grounds raised by the applicant are his defense which are available to him during the trial but these grounds cannot be considered at this stage to quash the impugned proceeding being disputed question of fact. 7. So far as the judgement of Rak Kumar Khurana (supra) relied upon by counsel for the applicant is concerned, that judgement is having different facts hence will not be applicable in the present case. In the case of Raj Kumar Khurana (supra), police complaint and written information to bank was given two month prior to the date of presentation of cheque but in the present case information to Bank was given on the date of presentation of cheque. In otherwise Apex Court in the case of Laxmi Dyechem Vs. State of Gujarat, (2012) 13 SCC 375, observed that returning of cheques with the endorsement stop payment will be sufficient for issuing process and accused can raise his defense during trial. Paragraph Nos.16.2 and 17 of the judgement of Apex Court in the case of Laxmi Dyechem Vs. State of Gujarat are quoted as under:- "16.2. There may indeed be situations where a mismatch between the signatories on the cheque drawn by the drawer and the specimen available with the bank may result in dishonour of the cheque even when the drawer never intended to invite such a dishonour. We are also conscious of the fact that an authorised signatory may in the ordinary course of business be replaced by a new signatory ending the earlier mandate to the bank. Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable. Even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial Court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration. 17. In the case at hand, the High Court relied upon a decision of this Court in Vinod Tanna's case (supra) in support of its view. We have carefully gone through the said decision which relies upon the decision of this Court in Electronics Trade & Technology Development Corporation Ltd. (supra). The view expressed by this Court in Electronics Trade & Technology Development Corporation Ltd. (supra) that a dishonour of the cheque by the drawer after issue of a notice to the holder asking him not to present a cheque would not attract Section 138 has been specifically overruled in Modi Cements Ltd. case (supra). The net effect is that dishonour on the ground that the payment has been stopped, regardless whether such stoppage is with or without notice to the drawer, and regardless whether the stoppage of payment is on the ground that the amount lying in the account was not sufficient to meet the requirement of the cheque, would attract the provisions of Section 138."
Decision
8. In view of the above, this Court does not find any illegality in the impugned proceedings and the present application is dismissed. Order Date :- 3.12.2024 Jitendra