MUSTUFA PAKAWAL Vs. PRATAP SINGH

JUDGEMENT

(1.) By this application under Section 482 of the Cr.P.C. Mustufa has challenged the order dated 14/10/2010 passed by the Additional Sessions Judge, Ratalam in criminal revision No.185/2010 dismissing the revision and upholding the order of the Trial Court.

(2.) Brief facts of the prosecution are that the complainant had filed a complaint against the petitioner for offence under Section 138 of the Negotiable Instruments Act stating that the accused had purchased material for a sum of Rs.14,000/ - and later also taken a loan of Rs.2,00,000/ -. Thus, the total outstanding amount was Rs.2,14,000/ - regarding which the accused had given a cheque. However, on its presentation the same was returned by the Bank with note indicating that the cheque could not be drawn due to condition 15 of the memo <SLINK_NO>1</SLINK_NO> Annexure P/3. The complainant sent a notice to the accused through his Advocate and the reply was sent refusing the transactions on false ground. Hence a complaint was filed before the Judicial Magistrate First Class and the Judicial Magistrate First Class issued notice to the accused. However, on recording statement under Section 202 of the Cr.P.C. the Trial Court under Section 203 of the Cr.P.C. discharged the accused by order dated 21/6/2010 by holding that offence under Section 138 of the Negotiable Instruments Act could not be made out. The petitioner being aggrieved filed a revision petition before the Revisional Court which also uphold the finding of the trial Court and hence, the present petition under Section 482 of the Cr.P.C. for setting aside both the orders.

(3.) Counsel for the applicant has vehemently urged the fact that when the disputed cheque was materially altered without any evidence the complaint could not have been ignored and the accused respondent could not have been discharged. Counsel urged that it was a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer and such alteration required evidence to be adduced to prove that the alteration was not made by the complainant. Counsel relied of Veera Exports vs. T. Kalavathy, 2002 1 SCC 97. Secondly Counsel vehemently urged the fact that both the Courts below had erred in dismissing the complaint that reasons for dishonor of cheque are wholly irrelevant and cannot be taken into account. The Court held that once the cheque is issued by the drawer, presumption is available under Section 139 of the Negotiable Instruments Act. Relying on Yogendra Kumar vs. Ram P:rakish Agrawal, 2007 2 MPLJ 510 Counsel submitted that in a similar case where note of the Bank indicated the words "present again" were mentioned in the memorandum and this Court had held that the reasons for dishonor of cheque are wholly irrelevant and cannot be taken into account. Once the cheque is issued by the drawer a presumption under Section 139 of the Negotiable Instruments Act must follow and despite presentation of the cheque in the bank and thereafter issuing a notice of demand, the amount remained unpaid, the drawer of the cheque can be held responsible for offence under Section 138 of the N.I. Act. Relying on S.Devan, Cine Artist, No.IV v. C. Krishna Menon,"Sowparknia"& ors., 2010 2 DCR 1 (Kerala High Court) whereby the Court had held that mere fact that Banker returns the cheque for the reason that the signature differs is no reason for the court to mechanically swallow that reason. Counsel urged that the reasons may be relevant and the Court has to come to a conscious conclusion that what was the actual reason for dishonour of the cheque. Finally, relied on M/s Laxmi Dyechem v. State of Gujarat & ors., 2013 2 DCR 312 Counsel also stressed the fact that the Apex Court had held that the Bank had returned the cheque with a remark that signature did not match and the Apex Court had held that dishonour of cheque the reasons stated in the memorandum may be any reason, but 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. Whereas in the instant case Counsel submitted that the Court had without investigation directly discharged the accused after following the provisions of Section 203 of the Cr.P.C.