Sachin Kumar Mishra v. Dashrath Prasad and others), under Section
Case Details
Neutral Citation No. - 2023:AHC:175582 Court No. - 88 Case :- APPLICATION U/S 482 No. - 24088 of 2023 Applicant :- Dashrath Prasad And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vineet Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J.
Legal Reasoning
1-Heard learned counsel for the applicants, learned Additional Government Advocate representing the State of U.P./opposite party no.1 and perused the record. 2-This application under Section 482 Cr.P.C. has been filed by the applicants to quash the summoning order dated 15.03.2023 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No. 9, Varanasi and proceedings of Case No. 27976 of 2023 (Sachin Kumar Mishra Vs. Dashrath Prasad and others), under Section 138 of Negotiable Instruments Act, 1881, Police Station Shivpur, District Varanasi pending in the court of Additional Chief Judicial Magistrate-VI, Varanasi. 3-Brief facts of the case which are required to be stated are that the opposite party no.2 filed a complaint dated 16.02.2023 under Section 138 of Negotiable Instruments Act against the applicants alleging inter alia that he is owner of the firm "Shubham Enterprises". In the year 2020, he was appointed/engaged as distributor of "Achi Masala Foods Private Limited company" (hereinafter referred to as 'the company') through accused-applicants to distribute/promote the products of the company in his area after taking security amount Rs. 25,000/- from him. He had been discharging his duty properly, due to which said company benefited a lot. Later they stopped his work with bad intention. When he asked the applicants to settle the accounts, then the applicant nos.2 and 3 in collusion with applicant no.1, who is sales man of the company, issued a cheque of Rs. 8,00,000/- bearing cheque no.000018 of H.D.F.C. Bank dated 03.12.2022 to discharge their liability. However, on presenting the said cheque by him within due date in the I.C.I.C.I. Bank, it was dishonoured on 05.12.2022 due to insufÏcient fund in the account of applicant no.1. Information about the dishonour of cheque was immediately given by him to applicant no.1, on which he said to deposit the cheque again in the bank after twenty days. Accordingly, he again presented the cheque in the bank after twenty days, but again the cheque was dishonoured on 27.12.2022 due to insufÏcient fund in the account of applicant no.1. As such, the applicants adopting different modus operandi have grabbed his Rs. 8,00,000/-. On the said complaint, applicants have been summoned by the learned Magistrate to face trial. is He neither 4-It is submitted by learned counsel for the applicants that M/s Shubham Enterprises, the firm of the complainant was appointed by the Managing Director of the company as mother distributor for general trade in Shivpur area of district Varanasi after taking security Rs.25,000/-, so as to promote the products of company subject to terms and conditions mentioned in the appointment order dated 08.08.2020. The applicant no.1 (Dashrath Prasad) was not a direct employee of the company but he was acting as an off-roll employee of the company. authorised signatory/competent authority of the company nor has he issued cheque on behalf of the company. The cheque which is alleged to have been issued by applicant no.1 to the complainant is his personal cheque in the name of the applicant no.1, which has been misused by the complainant. The applicant nos.2 and 3, namely, Sanjay Kumar Rai and Shekhar Sahu are neither concerned with this matter nor liable to pay Rs. 8,00,000/- to the complainant. They have been falsely implicated. The required statutory notice has been given by the complainant on 19.01.2023 after expiry of thirty days of dishonour of cheque i.e. on 05.12.2022, therefore, the complainant dated 16.02.2023 is barred by limitation in view of Section 142(1)(b) of the Negotiable Instruments Act. Lastly, it is submitted that since the company has not been arrayed as accused/party in the complaint and complaint has been filed by the complainant in his personal capacity without showing sufÏcient cause for not making complaint within one month of the date on which cause of action has arisen, therefore, criminal proceeding against the applicants is not sustainable and liable to be quashed. The learned counsel for the applicants placed reliance upon the following judgments of Hon'ble Supreme Court :- (i) Aneeta Hada Vs. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661, (ii) Himanshu Vs. B. Shivamurthy and another, (2019) 3 SCC 797, (iii) Sunita Palita and others Vs. Panchami Stone Quarry, (2022) 10 SCC 152. 5-Per contra, learned Additional Government Advocate for the State refuting the submissions advanced on behalf of the applicants submitted that as per case of the complainant, first time cheque was dishonoured on 05.12.2022 due to insufÏcient fund in the account of applicant no.1. Information about the dishonour of cheque was immediately given by the complainant to applicant no.1, on which he requested to deposit the cheque again in the bank after twenty days but again on presenting the cheque in the bank after twenty days, cheque was dishonoured on 27.12.2022 due to insufÏcient fund, thereafter required notice with demand was sent by the complainant on 19.01.2023 and on non-payment of cheque amount complaint was filed on 16.02.2023 within limitation period. Considering the allegations made in the complaint as well as statement of complainant, the cognizable offence under Section 138 of Negotiable Instruments Act against the applicants is made out. The criminal proceedings against the applicants cannot be said to be abuse of the process of the Court, hence this application is liable to be dismissed. 6- In support of his contentions, learned A.G.A. placed reliance upon the following judgments of the Hon'ble Apex Court :- (i) Sunil Todi and others Vs. State of Gujarat and another, 2021 SCC OnLine SC 1174, (ii) HMT Watches Limited Vs. MA Abida and another, (2015) 11 SCC 776. 7-Having heard the submissions of learned counsel for the parties and perusing the entire record, I find that the applicant no.1 has not disputed his signature and handwriting on the cheque. Issuance of cheque by the applicant no.1 to the complainant is also not disputed. So far as defence of the applicant no.1 that he had given cheque to the complainant for different purpose but his cheque has been misused by the complainant is concerned, I find that no complaint has been made by the applicant no.1 in this regard. The cheque was dishonoured twice, firstly on 05.12.2022 and secondly on 27.12.2022. After dishonour of cheque for the second time, a demand notice dated 19.01.2023 was sent by the complainant within thirty days to the accused- applicants which was replied by applicant nos.2 and 3 on 01.02.2023 denying the allegations levelled against them as well as company with further averment that they have not authorised any employee to make transaction. It is the case of the applicant nos.2 and 3 that neither the company nor its authorised signatory has issued cheque of the company to the complainant. Cheque has been issued by the applicant no.1 to the complainant in his personal capacity. The applicant no.1 gave reply dated 03.02.2023 and has come up with the stand that his cheque was misutilised. On perusal of the appointment letter dated 08.08.2022 of the complainant, I find that the same has been issued by the Managing Director of the company and copy of the same has been sent to applicant nos.2 and 3 also, who are RSM and ASM of the company, therefore, at this stage it cannot be said that they have no concern at all with the case. 8- In view of the judgments of the Hon'ble Apex Court in the cases of MSR Leathers Vs. S. Palaniappan and another, (2013) 1 SCC 177 and Sicagen India Limited Vs. Mahindra Vadineni and others, (2019) 4 SCC 271, a dishonour whether based on a second or any successive presentation of a cheque for encashment would be a dishonour within the meaning of Section 138 and clause (a) to proviso thereof. So long as the cheque remains valid and unpaid, there is a continuing obligation of drawer to make good the same. As such, prosecution based on second or successive default/dishonour of cheque is maintainable. So far as judgments relied upon on behalf of the applicants are concerned, the same are distinguishable on the facts of this case, as in this case as per the stand of the applicant nos.2 and 3, the cheque has not been issued by the Director of the company or authorized representative of the company. The cheque in question is a personal cheque of the applicant no.1, hence the same is not helpful to the applicants. It is well settled that every case turns on its own facts. Even one additional or different fact may make a big difference between the conclusion of two cases, because even a single significant detail may alter the entire aspect. The grounds taken in the application reveal that many of them relate to disputed question of fact. At the stage of summoning the accused, the court below is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegations cannot be even determined at the stage of summoning the accused. It is also settled by the Apex Court in catena of judgments that the powers under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sparingly, only in such an appropriate cases, where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in complaint and the materials relied in support of same, on taking their face value and accepting in their entirety do not disclose the commission of any offence against the accused. Power under Section 482 of the Code of Criminal Procedure cannot be exercised where the allegations are required to be proved in court of law. 9-This Court does not find that this case fall in the categories as recognized by the Apex Court for quashing the criminal proceeding of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicants in this case, the cognizable offence is made out. At this stage, it would not be appropriate to adjudge whether the case shall ultimately end in conviction or not. Only prima facie satisfaction of the Court about the existence of sufÏcient ground to proceed in the matter is required. The impugned criminal proceeding under the facts of this case cannot be said to be abuse of the process of the Court. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court. 10-The relief as sought by the applicants through the instant application is hereby refused. 11-This application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed. Order Date :- 6.9.2023 Shubham Digitally signed by :- SHUBHAM KUMAR AGRAHARI High Court of Judicature at Allahabad