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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL WRIT PETITION NO.1131 OF 2009
Smt.Rukmini Vishwanath Shendge : Petitioner
(Original Accused)
V/s.
Shri Shriniwas Tuljaram Burudkar & Anr. : Respondents
....
Mr.D.V. Gangal with Mr.Ram Singh for the petitioner.
Mr.Niranjan P. Shimpi for respondent no.1.
Mrs.P.P. Bhosale, Addl. Public Prosecutor for the State.
....
CORAM : S.A. BOBDE, J.
DATE : SEPTEMBER 09, 2009.
ORAL ORDER:
1. The petitioner has challenged the process under section 138 of the
Negotiable Instruments Act on a complaint filed by the respondent no.1.
2. The main contention of Mr.Gangal, the learned counsel for the
petitioner, is that two of the five vital ingredients of the offence under
section 138 as laid down by the Supreme Court in Kusum Ingots & Alloys
Ltd. v. Pennar Peterson Securities Ltd. [(2002) 2 SCC 745] have not
been followed, viz., ingredients nos.(iii) and (v). The five ingredients laid
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down by the apex Court in paragraph 10 in Kusum Ingots & Alloys Ltd.’s
case read as follows:-
“(i) a person must have drawn a cheque on an
account maintained by him in a bank for payment
of a certain amount of money to another person
from out of that account for the discharge of any
debt or other liability;
(ii) that cheque has been presented to the bank
within a period of six months from the date on
which it is drawn or within the period of its
validity, whichever is earlier;
(iii) that cheque is returned by the bank unpaid,
either because the amount of money standing to the
credit of the account is insufficient to honour the
cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with
the bank;
(iv) the payee or the holder in due course of the
cheque makes a demand for the payment of the said
amount of money by giving a notice in writing, to
the drawer of the cheque, within 15 days of the
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3receipt of information by him from the bank
regarding the return of the cheque as unpaid;
(v) the drawer of such cheque fails to make
payment of the said amount of money to the payee
or the holder in due course of the cheque within 15
days of the receipt of the said notice.”
3. According to Mr.Gangal, the respondent no.1 did not allege
ingredient no.(iii) above by stating that the amount of money standing to
the credit of the account is sufficient to honour the cheque. On the
contrary, the respondent no.1 averred in the complaint that the petitioner-
accused ordered the Bank to stop payment of the cheque and that is why
the respondent-complainant did not receive the money. According to
Mr.Gangal, the averments that the accused directed the Bank to stop
payment of the cheque does not constitute an offence since what
constitutes an offence under section 138 of the Act, it is the return of a
cheque by the Bank, unpaid, because the funds of the accused are
insufficient to honour the cheque. The second contention of Mr.Gangal is
that the respondent no.1 has not averred in the complaint that the
petitioner-accused has failed to make payment of the amount of money
demanded within 15 days of receipt of the notice.
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4. There is no merit in the contention that if a complainant avers in
the complaint that he did not receive payment because the accused
directed the Bank to stop payment of the cheque, no offence under
section 138 of the Act can be said to have been made out. In Modi
Cements Ltd. v. Kuchil Kumar Nandi [(1998) 3 SCC 249], the Supreme
Court was considering an appeal from a judgment of the High Court
which had held that a complaint under section 138 is not tenable since:-
“(i) The appellant has not pleaded in his complaint
that the cheques were returned by the bank unpaid
“either because the amount of money standing to
the credit of that account is insufficient to honour
the cheque or that it exceeds the amount arranged
to be paid from that account by an agreement made
with that bank”. The necessary ingredients of
Section 138 of the Act having not been pleaded the
Court could not have taken cognizance of the
offence.
(i) Mere endorsement of the bank “payment
stopped” was not sufficient to entertain the
complaint as that was not an ingredient of the
offence under Section 138 of the Act.”
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The Supreme Court relied on its earlier judgement in Electronics Trade &
Technology Development Corpn. Ltd. v. Indian Technologists &
Engineers (Electronics) (P) Ltd. [(1996) 2 SCC 739] and the judgement in
K.K. Sidharthan v. T.P. Praveena Chandran [(1996) 6 SCC 369] in which
the Supreme Court held that section 138 gets attracted even if a cheque is
dishonoured because of stop payment instructions to the Bank. Their
Lordships concluded as follows:-
“11. Another two-Judge Bench while dealing with
the same question in K.K. Sidharthan v. T.P.
Praveena Chandran (SCC p. 370, para 2) observed:
“This shows that Section 138 gets attracted in
terms if cheque is dishonoured because of
insufficient funds or where the amount exceeds the
arrangement made with the bank. It has, however,
been held by a Bench of this Court in Electronics
Trade and Technology Development Corpn. Ltd.
v. Indian Technologists and Engineers
(Electronics) (P) Ltd. that even if a cheque is
dishonoured because of `stop payment’ instruction
to the bank, Section 138 would get attracted.:
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We are in complete agreement with the above legal
proposition.”
5. Subsequently, the Supreme Court in Goaplast (P.) Ltd. v. Chico
Ursula D’Souza & another (2003 Bom.C.R.(Cri.) 931) re-affirmed this
view in the following words:-
“A contrary view would render section 138 a dead
letter and will provide a handle to persons trying to
avoid payment under legal obligations undertaken
by them through their own acts which in other
words can be said to be taking advantage of one’s
own wrong. If we hold otherwise, by giving
instructions to banks to stop payment of a cheque
after issuing the same against a debt or liability, a
drawer will easily avoid penal consequences under
section 138. Once a cheque is issued by a drawer,
a presumption under section 139 must follow and
merely because the drawer issued notice to the
drawee or to the bank for stoppage of payment it
will not preclude an action under section 138 of the
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7Act by the drawee or the holder of the cheque in
due course. This was the view taken by this Court
in (Modi Cements Ltd. v. Kuchil Kumar Nandi)2,
2000 DoCh. (S.C.) 720 : 1999 Bank.J. 83 (S.C.) :
1998 (3) S.C.C. 249. On same facts is the decision
of this Court in (Ashok Yeshwant Badave v.
Surendra Madhavrao Nighojakar)3, 2001(5)
Bom.C.R. (S.C.)456 : 2003 Do.Ch. (S.C.)181 :
2001 Bank.J. (S.C.)458 : 2001 (3) S.C.C. 726. The
decision in Modi case overruled an earlier decision
of this Court in (Electronics Trade & Technology
Development Corporation Ltd. v. Indian
Technologists & Engineers (Electronics) (P.)
Ltd.)4, 1996(2) Bom.C.R. 150(S.C.) : 2000 DoCh.
(S.C.)296 : 1996 Bank.J. 408(S.C.) : 1996(2)
S.C.C. 739 : A.I.R. 1996 S.C. 2339, which had
taken a contrary view. We are in respectful
agreement with the view taken in Modi case. The
said view is in consonance with the object of the
legislation. On the faith of payment by way of a
post-dated cheque, the payee alters his position by
accepting the cheque. If stoppage of payment
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before the due date of the cheque is allowed to take
the transaction out of the purview of section 138 of
the Act, it will shake the confidence which a
cheque is otherwise intended to inspire regarding
payment being available on the due date.”
In this view of the matter, there is no merit in this contention raised on
behalf of the petitioners.
6. As regards the contention that the complaint does not mention
another essential ingredient, viz., the petitioner-accused failed to make
payment within a period of 15 days on receipt of the notice, Mr.Gangal
referred to the pleadings in the case, a true translation of which reads as
follows:-
“For the information and payment of amount of
the dishonoured cheque, the Complainant sent a
notice on the above noted address on 3.2.2006,
through Advocate Shri P.D. Kulkarni by Registered
post Ack/Due and copy of that was sent by Under
Postal Certificate on the address mentioned in the
notice. The Accused has received the aforesaid
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9notice. After receiving the above notice, the
Accused did not pay the amount mentioned in the
notice to the Complainant. The Complainant due
to non-receipt of the amount and offence
committed by the Accused this case is filed for
enquiry.”
According to Mr.Gangal, because the notice does not mention that
payment was not made within 15 days from the receipt, the complaint is
not tenable under section 138 of the Act as it does not disclose a vital
ingredient of the offence. It is true that non-payment of the amount
demanded within 15 days of the receipt of the notice is a vital ingredient
of the offence under section 138 of the Act i.e. an ingredient, the
existence of which must be proved to the satisfaction of the Court upon
evidence at the time of the judgement. The mere non-mention of 15 days
in the complaint would not render the complaint liable to be dismissed if
the complaint otherwise discloses that payment was not made within 15
days. In the complaint in question, the respondent-complainant has
averred that he sent a notice on 3.2.2006 which was received by the
petitioner. It is further stated that the petitioner did not pay the amount
mentioned in the notice to the complainant. This statement obviously
must be understood in the context of the date of filing of the complaint
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i.e. to say that the petitioner did not make the payment till the date the
complaint was filed i.e. on 28.3.2006. The complaint ex facie discloses
that upon service of notice, a period longer than 15 days has passed
without any payment. Such averments, in the context, are sufficient
compliance of the requirements of section 138 of the Act. There is no
merit in this contention also. It must, however, be made clear that
dismissal of this petition under section 482 shall not foreclose any other
defence of the petitioner.
7. Mr.Shimpi for the respondent no.1 points out that there is already
an order for time bound decision of the complaint passed by the Sessions
Court. However, the trial could not be concluded because of the
pendency of this petition. In the circumstances, it is directed that the trial
Court shall decide the complaint within three months from the date the
parties appear before the trial Court. The parties are directed to appear
before the trial Court on 22.9.2009.
8. This Criminal Writ Petition stands dismissed.
S.A. BOBDE, J.
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