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S.B. CIVIL WRIT PETITION NO.540/2006.
Shailesh Kumar Jain Vs. Bank of Baroda & Ors.
Date of Order :: 6th February 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. J.P. Bhardwaj, for the petitioner.
Mr. J.K. Chanda, for the respondents Nos. 1 & 2.
.....
BY THE COURT:
This writ petition questioning the coercive money
recovery proceedings was entertained by this Court on
03.02.2006 after noticing the submissions on behalf of the
petitioner that he was ready and willing to square up the entire
account with the respondent Bank and was ready to pay the
reasonable dues; and in all bona fides, even before
approaching the Court, he had deposited an amount of
Rs.2,00,000/- with the respondent Bank on 27.01.2006 and
was ready to deposit another amount of Rs. 1,00,000/-.
Taking note of such submissions and looking to the overall
circumstances, this Court issued notices and ordered stay
over further recovery proceedings on the condition that the
petitioner would deposit the said amount of Rs. 1,00,000/- with
the respondent Bank on or before 09.02.2006.
It is not in dispute that the requirements of the order
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dated 03.02.2006 were indeed carried out by the petitioner.
This matter was thereafter taken up for consideration on
16.01.2009 when the petitioner Shailesh Kumar Jain referred,
inter alia, to the fact that a part of his land placed in mortgage
with the respondent Bank went in acquisition and for
compensation against such acquisition, a cheque bearing No.
647136 dated 11.03.2008 was issued by the Project Director,
National Highway Authority of India and Sub-Divisional Officer,
Mount Abu in the sum of Rs. 2,32,287/- payable to “Shailesh
Kumar son of Shanti Swaroop Jain (Mortgage – Bank of
Baroda)” drawn on the Bank of Baroda, Mount Abu; and the
petitioner pointed out that the said cheque was returned
unpaid and in that relation, proceedings under Section 138
Negotiable Instruments Act had been adopted by him against
the said Project Director and the Sub-Divisional Officer. This
Court expressed prima facie reservations on such proceedings
as adopted by the petitioner; however, consideration of the
matter was deferred at the request of the learned counsel for
the respondent Bank who prayed for some time to complete
his instructions and to place on record the correct statement of
account of the petitioner.
On 20.01.2009, it was given out by the learned counsel
for the respondent that he had received the statement of
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accounts and would be filing the same whereas it was given
out on behalf of the petitioner that he had made a
representation to the concerned Sub-Divisional Officer; and
while directing the petitioner to place a copy of such
representation on record, the matter was adjourned to
28.01.2009.
On 28.01.2009, while it was noticed that the parties
have placed the relevant documents on record, it was further
noticed that the petitioner did make a representation along
with two post-dated cheques of 15.02.2009 and 28.02.2009.
However, upon this Court expressing reservations on some of
the oral submissions that were made by the petitioner earlier
and that were found contradicted by the record and then the
very propriety and legality of the aforesaid proceedings under
Section 138 of the Negotiable Instruments Act and above all,
the uncertain nature of the propositions as stated by the
petitioner for settlement of the account, learned counsel for the
petitioner sought a couple of day’s time to complete his
instructions and matter was adjourned to 04.02.2009.
On 04.02.2009, the matter was further adjourned at the
request of the parties to be taken up for consideration today.
Today, learned counsel for the petitioner has placed for
perusal the order dated 04.02.2009 as passed by the Judicial
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Magistrate, Abu Road in Criminal Case No. 529/2008 whereby
the learned Magistrate has accepted the prayer made by the
petitioner-complainant for withdrawal of his complaint under
Section 138 of the Negotiable Instruments Act and has
dismissed the said complaint as withdrawn, while discharging
the non-petitioners therein. Learned counsel for the petitioner
submits that the petitioner expresses regrets for the
submissions as made earlier particularly in relation to the
deposit of the amount of Rs. 65,000/- with the respondent
Bank in relation whereof, for bona fide mistake, the petitioner
could not point out to the Court that the said amount had been
received back by him. Learned counsel submits that with such
regrets the petitioner has deposited an amount of Rs. 2,000/-
in Legal Aid. Learned counsel submits that the petitioner
seeks to sincerely pursue his representations as made earlier
and seeks to settle out the matter with the Bank concerned
and, therefore, seeks permission not to proceed with this writ
petition any further and for withdrawal.
Though learned counsel for the respondent Bank
submits that the respondent Bank was unnecessarily got
entangled in this litigation and makes a prayer for awarding
costs but looking to the overall circumstances and the steps
taken by the petitioner particularly during last few weeks, this
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Court is satisfied that interest of justice shall not be defeated if
the petitioner is permitted to withdraw without any order as to
costs.
However, before parting with the matter this Court feels
constrained to make a comment that the cognizance as taken
by the learned Magistrate against the Sub-Divisional Officer
and the Project Director of National Highway Authority of India
on the complaint under Section 138 of the Negotiable
Instruments Act by the order dated 18.06.2008 cannot be
approved. It was definitely required of the learned Magistrate
to have appropriately examined the cheque in question that
was specifically drawn while indicating mortgage with Bank of
Baroda and so also the cheque returning memo whereby the
cheque was returned unpaid not for any reason of
insufficiency of funds or of its exceeding arrangements but
specifically on the ground that the cheque was crossed to
Bank of Baroda. In the given fact situation, there was
absolutely nothing on record to find if the said Sub-Divisional
Officer and Project Director did anything calculated at
avoiding payment of the money under the said cheque to the
lawful payee.
Although after this Court expressed reservations on the
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legality and propriety of such proceedings under Section 138
of the Negotiable Instruments Act against the said Sub-
Divisional Officer and the Project Director, the petitioner had
been discreet in putting an end to those proceedings by
moving application before the Magistrate and now for the
petitioner withdrawing from this writ petition too, this Court
would leave the matter at that only but with the observations
that there was no justification whatsoever that any cognizance
was taken against the said Sub-Divisional Officer and the
Project Director under Section 138 Negotiable Instruments
Act.
The writ petition stands dismissed as withdrawn. No
costs.
(DINESH MAHESHWARI), J.
Mohan/