Rajiv Kumar Mishra v. Harinam), under section

1. Heard Sri Sarvesh, learned counsel for the applicant and Sri Pankaj Kumar Rai, learned State Law Officer.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 13.9.2024 as well as entire proceedings of complaint case no. 10467 of 2020 (Rajiv Kumar Mishra versus Harinam), under section 138 of N.I. Act, P.S. Kalyanpur, District Kanpur Nagar, pending in the court of A.C.J.M. 7, Kanpur Nagar..

3. Learned counsel for the applicant has submitted that a complaint was lodged by O.P. No.2 on 07.08.2020 against the applicant under Section 138 of N.I. ACt with an allegation that on different dates, payments were made by the O.P. No.2 to the applicant and when pressure was being mounted upon the applicant, the applicant has drawn a cheque bearing number "034052" dated 19.09.2019 for an amount of Rs.3,00,000/-, which on presentation in the bank on 16.03.2020 came to be dishonoured on 19.03.2020 with the remark "drawer's signature differs". Thereafter on assurance being extended by the applicant herein, again the said cheque was sumbitted in the bank on 06.06.2020 which came to be dishonoured on 09.06.2020 followed by a statutory demand notice on 19.06.2020 and in failing to make the said payment complaint under Section 138 of N.I. Act and applicant came to be summoned on 13.09.2024. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason, firstly, there is no date mentioned in the complaint as to when and what amount was paid by the O.P. No.2 to the applicant, secondly, the applicant happens to be the labour being an illiterate person, however, his bank account was opened by the O.P. No.2 while getting a cheque-book issued and making interpolations, the cheque was presented in the bank and got it dishonoured, thirdly, once the cheque stood dishonoured on 19.03.2020 with the remark "drawer's signature differs", then there was no occasion to have again presented the cheque for encashment on 06.06.2020 and getting the cheque dishonoured with the same remark. Fourthly, the O.P. No.2 happens to be a hardened criminal and in this regard, the description and the details of the criminal case against the O.P. No.2 has been in paragraph-6 and 8, fifthly, no enforceable legal debt or liability stands accrued, so as to invoke provisions of Section 138 of N.I. Act, and sixthly, the cheque was filed after lapsing the validity after 8 and 1/2 months.

4. Learned State Law Officer on the other hand submits that once the cheque stood drawn and it was dishonoured, then the presumption under Section 139 of the N.I. Act would be in favour of the holder and whatever arguments are being sought to be raised, they are the matter of defences, stage of consideration has not arisen as yet.

5. I have heard the submissions so made across the Bar and persued the records carefully.

6. The sole question which arises for determination is the extent of judicial intervention at this stage in the present proceedings. Apparently, the cheque of an amount of Rs.3,00,000/- bearing number "034052" is alleged to have been drawn by the applicant as portrayed in the complaint on 19.09.2019, which came to be dishonoured for the first time on 19.03.2020 with the remark "drawer's signature differs" and subsequently, the same when represented in the bank was dishonoured on 09.06.2020. As regards the submission of learned counsel for the applicant that there is no date, mode of payment and the amount mentioned with regard to payments alleged to have been made by O.P. No.2 is concerned, which in turn was sought to be repaid by means of a cheque which was dishonoured is a question of trial, as this Court at this juncture is only concerned with the drawing of the cheque and dishonouring of the cheque. With respect to second argument that the applicant is illiterate coupled with the fact that the O.P. No.2 is a hardened criminal and he has misutilized the cheque while getting a bank account opened in the name of the applicant and getting it misutilized while getting it dishonoured is concerned, the same is at best the defence, consideration whereof is not required at the stage of summoning. As regards the submission of the learned counsel for the applicant that once the cheuqe stood drawn and it was dishonoured for the very first time with the remark "drawer's signature differs" then there was no occasion or reason to again represent the cheque and getting the same dishonoured for the same reason, as the said defect was inherent defect which would always come in the way whenever the cheque is presented is concerned, the argument appears to be attractive at the blush, but it is not liable to be accepted in the matter pertaining to dishonouring of a cheque at the stage of summoning, particularly when what would be relevant is the fact as to whether drawer's signature differs answers the description of the dishonour under Section 138 of the N.I. Act or not. The Hon'ble Apex Court in Laxmi Dyechem vs. State of Gujarat and others, (2012) 13 SCC 375 had the occasion to consider the said aspect of the matter and in para-16, the following was observed: - "16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression amount of money... is insufficient appearing in Section 138 of the Act is a genus and dishonour for reasons such as account closed, payment stopped, referred to the drawer are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the signatures do not match or that the image is not found, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act."

7. In so far as the arguments of learned counsel for the applicant that once the cheque stood dishonoured on 19.03.2020, then the same became an invalid document, particularly when its validity period as per the RBI norms is concerned, this Court at this stage is not required to delve into as the reason for dishonour is drawer's signature differs and not on the ground that the instrument became invalid.

8. In any view of the matter at the stage of summoning, what would be relevant would be a drawing of a cheque and dishonouring of the same, which would attract the presumption in favour of the holder under Section 139 of N.I. Act. The arguments, with respect to the applicant being labour, the O.P. No.2 being a hardened criminal and fraud had been played upon the applicant is concerned they are matter of defences, consideration whereof is not required at this stage, as the same would necessitate consideration on being raised at the time when the trial commences, when a decision is to be taken, whether the applicant is to be acquitted or convicted. Accordingly, there is no reason to interfere. The interference is declined.

9. The application stands disposed of granting liberty to the applicant to take all legal and factual grounds while contesting the trial and this Court has no reason to disbelieve that the same shall be considered in correct perspective.

10. Needless to point out that any observations made herein above is only with respect to the validity of the summoning order and may not be construed to be an expression on the merits of the case. Order Date :- 14.7.2025 N.S.Rathour (Vikas Budhwar, J)

1. Heard Sri Sarvesh, learned counsel for the applicant and Sri Pankaj Kumar Rai, learned State Law Officer.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 13.9.2024 as well as entire proceedings of complaint case no. 10467 of 2020 (Rajiv Kumar Mishra versus Harinam), under section 138 of N.I. Act, P.S. Kalyanpur, District Kanpur Nagar, pending in the court of A.C.J.M. 7, Kanpur Nagar..

3. Learned counsel for the applicant has submitted that a complaint was lodged by O.P. No.2 on 07.08.2020 against the applicant under Section 138 of N.I. ACt with an allegation that on different dates, payments were made by the O.P. No.2 to the applicant and when pressure was being mounted upon the applicant, the applicant has drawn a cheque bearing number "034052" dated 19.09.2019 for an amount of Rs.3,00,000/-, which on presentation in the bank on 16.03.2020 came to be dishonoured on 19.03.2020 with the remark "drawer's signature differs". Thereafter on assurance being extended by the applicant herein, again the said cheque was sumbitted in the bank on 06.06.2020 which came to be dishonoured on 09.06.2020 followed by a statutory demand notice on 19.06.2020 and in failing to make the said payment complaint under Section 138 of N.I. Act and applicant came to be summoned on 13.09.2024. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason, firstly, there is no date mentioned in the complaint as to when and what amount was paid by the O.P. No.2 to the applicant, secondly, the applicant happens to be the labour being an illiterate person, however, his bank account was opened by the O.P. No.2 while getting a cheque-book issued and making interpolations, the cheque was presented in the bank and got it dishonoured, thirdly, once the cheque stood dishonoured on 19.03.2020 with the remark "drawer's signature differs", then there was no occasion to have again presented the cheque for encashment on 06.06.2020 and getting the cheque dishonoured with the same remark. Fourthly, the O.P. No.2 happens to be a hardened criminal and in this regard, the description and the details of the criminal case against the O.P. No.2 has been in paragraph-6 and 8, fifthly, no enforceable legal debt or liability stands accrued, so as to invoke provisions of Section 138 of N.I. Act, and sixthly, the cheque was filed after lapsing the validity after 8 and 1/2 months.

4. Learned State Law Officer on the other hand submits that once the cheque stood drawn and it was dishonoured, then the presumption under Section 139 of the N.I. Act would be in favour of the holder and whatever arguments are being sought to be raised, they are the matter of defences, stage of consideration has not arisen as yet.

5. I have heard the submissions so made across the Bar and persued the records carefully.

6. The sole question which arises for determination is the extent of judicial intervention at this stage in the present proceedings. Apparently, the cheque of an amount of Rs.3,00,000/- bearing number "034052" is alleged to have been drawn by the applicant as portrayed in the complaint on 19.09.2019, which came to be dishonoured for the first time on 19.03.2020 with the remark "drawer's signature differs" and subsequently, the same when represented in the bank was dishonoured on 09.06.2020. As regards the submission of learned counsel for the applicant that there is no date, mode of payment and the amount mentioned with regard to payments alleged to have been made by O.P. No.2 is concerned, which in turn was sought to be repaid by means of a cheque which was dishonoured is a question of trial, as this Court at this juncture is only concerned with the drawing of the cheque and dishonouring of the cheque. With respect to second argument that the applicant is illiterate coupled with the fact that the O.P. No.2 is a hardened criminal and he has misutilized the cheque while getting a bank account opened in the name of the applicant and getting it misutilized while getting it dishonoured is concerned, the same is at best the defence, consideration whereof is not required at the stage of summoning. As regards the submission of the learned counsel for the applicant that once the cheuqe stood drawn and it was dishonoured for the very first time with the remark "drawer's signature differs" then there was no occasion or reason to again represent the cheque and getting the same dishonoured for the same reason, as the said defect was inherent defect which would always come in the way whenever the cheque is presented is concerned, the argument appears to be attractive at the blush, but it is not liable to be accepted in the matter pertaining to dishonouring of a cheque at the stage of summoning, particularly when what would be relevant is the fact as to whether drawer's signature differs answers the description of the dishonour under Section 138 of the N.I. Act or not. The Hon'ble Apex Court in Laxmi Dyechem vs. State of Gujarat and others, (2012) 13 SCC 375 had the occasion to consider the said aspect of the matter and in para-16, the following was observed: - "16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression amount of money... is insufficient appearing in Section 138 of the Act is a genus and dishonour for reasons such as account closed, payment stopped, referred to the drawer are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the signatures do not match or that the image is not found, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act."

7. In so far as the arguments of learned counsel for the applicant that once the cheque stood dishonoured on 19.03.2020, then the same became an invalid document, particularly when its validity period as per the RBI norms is concerned, this Court at this stage is not required to delve into as the reason for dishonour is drawer's signature differs and not on the ground that the instrument became invalid.

8. In any view of the matter at the stage of summoning, what would be relevant would be a drawing of a cheque and dishonouring of the same, which would attract the presumption in favour of the holder under Section 139 of N.I. Act. The arguments, with respect to the applicant being labour, the O.P. No.2 being a hardened criminal and fraud had been played upon the applicant is concerned they are matter of defences, consideration whereof is not required at this stage, as the same would necessitate consideration on being raised at the time when the trial commences, when a decision is to be taken, whether the applicant is to be acquitted or convicted. Accordingly, there is no reason to interfere. The interference is declined.

9. The application stands disposed of granting liberty to the applicant to take all legal and factual grounds while contesting the trial and this Court has no reason to disbelieve that the same shall be considered in correct perspective.

10. Needless to point out that any observations made herein above is only with respect to the validity of the summoning order and may not be construed to be an expression on the merits of the case. Order Date :- 14.7.2025 N.S.Rathour (Vikas Budhwar, J)