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CASE NO.:

Appeal (crl.) 10-12 of 2001

PETITIONER:

RAJNEESH AGGARWAL

RESPONDENT:

AMIT J. BHALLA

DATE OF JUDGMENT: 04/01/2001

BENCH:

G.B. RATTANAIK & U.C. BANERJEE

JUDGMENT:

JUDGMENT

2001 (1) SCR 54

The Judgment of the Court was delivered by PATTANAIK, J.

Leave Granted.

The complainant is the appellant against the impugned orders dated 13

August, 1999 of a learned Single Judge of the Himachal Pradesh High Court m

three criminal miscellaneous petitions filed under Section 482 of the Code

of Criminal Procedure, By the impugned orders, the learned Judge quashed

three criminal complaints filed under Section 138 read with Section 141 of

the Negotiable instruments Act. Admittedly, three cheques had been given to

the appellant, drawn on Bank of Baroda, Parliament Street New Delhi,

representing different amounts, amounting to Rs. 2,32,600 in all. These

cheques were presented by the appellant for encashment, but the same were

returned with the endorsement "Payment stopped by the drawer". The

appellant, therefore, served notices oil the respondent, calling upon him

to pay the amount of cheques within 15 days of the receipt of the notice.

Since the respondent failed to pay the amount, the complaints were filled

in the Court of Chief Judicial Magistrate, Kullu. The learned Magistrate

proceeded to hold inquiry under Section 202 of the Code of Criminal

Procedure and thereafter took cognizance of the offence and directed

issuance of process. The accused respondent challenged the order of the

Magistrate, issuing process by filing application under Section 482 inter

alia on the ground that the stoppage of payment by the drawer does not

constitute an offence under Section 138 of the Negotiable Instruments Act

and service of notice, as contemplated under proviso (b) to Section 138 of

the Act has not been proved. Those petitions however were dismissed by the

High Court by order dated 25.3.1998. It was held by the High Court that in

view of the Judgment of the Supreme Court in MA Modi Cements Limited v.

Shri Kuchil Kumar Nandi, JT (1998) 2 SC 198, there is no merit in any of

the petitions and the same accordingly stand rejected, it was, however

observed that the accused shall be at liberty to raise all such points, as

may be available to him during the trial of the case before the trial

Court. After dismissal of respondent's application filed under Section 482

of the Code of Criminal Procedure, the respondent filed application before

the Magistrate for recalling the issuance of process. The Magistrate

however dismissed those applications. The accused, therefore, filed the

petitions before the High Court again under Section 482. The High Court

having allowed the application filed under Section 482 by the impugned

orders dated 1.2.1999, the complainant has preferred these appeals against

the same. Two contentions had been raised before the High Court by the

accused :

(1) Cheques had been issued in the capacity of the Director of the

company to whom the watches were supplied, but the complaint has been filed

without impleading the company as accused and as such the same is not

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maintainable; and

(2) In the absence of notice, as contemplated by clause (b) of the

proviso to Section 138 of the Negotiable Instruments Act, criminal

proceedings cannot be proceeded with.

The High Court rejected the first contention and held that the criminal

prosecution would lie under Section 138 of the Negotiable Instruments Act,

without impleading the company of which the accused is the Director as the

party. But so far as the second contention is concerned, the High Court

came to the conclusion that the notice that was issued by the complainant

on account of dishonour of the cheques having been issued to the accused in

his individual capacity and not having been issued to the drawer thereof,

no offence can be said to have been committed by the company M/s. Bhalla

Techtran Industries Limited, and, therefore, the criminal proceedings

cannot be proceeded against by taking recourse to Section 141 of the Act.

It is this conclusion of the High Court, which is the subject matter of

challenge in these appeals.

In may be stated at this stage that in the earlier round of litigation,

when the accused has filed application under Section 482 of the Code of

Criminal Procedure, it had been urged that the service of notice, as

contemplated under proviso (b) to Section 138 of the Act, has not been

proved, but yet the Court refused to exercise jurisdiction under Section

482 and refused to quash the proceedings. The learned Judge after analyzing

the provisions of Section 138 of the Negotiable Instruments Act, came to

hold that before an offence under the said provision can be said to have

been made out, it must be shown that the cheque was presented to the bank

for encashment within a period of six months from the date on which it was

drawn or within the period of its validity, whichever is earlier; the payee

or holder in due course of the cheque makes demand for the payment of the

amount of money under the cheque by-giving a notice in writing to the

drawer of the cheque within 15 days of information received by him from the

bank regarding dishonour of the cheque; and the drawer of the cheque fails

to make payment of the amount of money within 15 days of the receipt of

notice. The High Court, however construed, the notices issued to the

accused respondent, as a notice in his individual capacity and not to the

company M/s. Bhalla Techtran Industries Ltd., notwithstanding the fact that

the notice was addressed to "Shri Amit J. Bhalla, Bhalla a Techtran

Industries Ltd., 116-Jor Bagh, New Delhi- 110 003" and, therefore, it was

not a notice to the drawer. The High Court further held that the judgment

of this Court in M/s Bilakchand Gyanchand Co. v. A. Chinnaswami. (1999) 2

SCALE 250, will have no application to the facts of this case. It

ultimately came to the conclusion that in the absence of requisite notice

to the drawer of the cheque, no offence can be said to have been committed

by the company within the meaning of Section 141 of the Act.

Mr. D.A. Dave, the learned senior counsel, appearing for the appellant

contended before us that on the self-same ground, the High Court having

earlier dismissed the application, filed under Section 482, could not have

re-examined the matter when fresh applications were filed under Section 482

and could not have allowed the same. He also further urged that the very

construction of the notice and the conclusion of the High Court on that

score is erroneous and further, the High Court committed error in hot

following the judgment of this Court in Bilakchand Gyanchand. [1999] 5 SCC

693.

Mr. G.L. Sanghi, the learned counsel, appearing for the respondent,

referred to the evidence of the complainant before issuance of summons and

submitted that on the face of the said evidence, the High Court was fully

justified in coming to the conclusion that there has been no service of

notice to the drawer, which is sine qua non for completion of offence under

Section 138 read with Section 141 of the Act, and, therefore, the

conclusion of the High Court is unassailable. Mr. Sanghi further urged that

the conclusion of the High Court to the effect that supply of watches made

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by the respondent to the company M/s Bhalla Techtran Industries Ltd. and

cheques involved in the case were also issued by the said company through

its Director that is the petitioner and in view of such admitted facts, the

petitioner cannot be proceeded against for the offence under Section 138 of

the Act in his individual capacity, is the only conclusion permissible

under the facts and circumstances of the case and, therefore, the order

quashing the criminal proceedings should not be interfered with, According

to Mr. Sanghi, the complainant has been prosecuting the accused Amit Bhalla

in his individual capacity, though categorically in the complaint petition,

it has been stated that the cheques had been issued by M/s Bhalla Techtran

Industries Ltd., through Mr. Amit J. Bhalla as a Director and consequently,

so far as the company is concerned, who is the real drawer of the cheque,

no notice can be said to have been issued, and, therefore, criminal

proceeding has rightly been quashed. Mr. Sanghi urged that the respondent

not being the drawer of the cheque, could not have been prosecuted in his

individual capacity inasmuch as there is no vicarious liability of a

Director in the criminal matters. Mr. Sanghi also contended that the

ultimate decision of quashing of criminal proceeding can be supported on

the further ground that the complaint is purely one of civil nature and the

complainant has abused the process of law by initiating criminal

prosecution as an arm twisting device and in this view of the matter, the

case does not warrant interference by this Court in exercise of

jurisdiction under Article 136 of the Constitution. Mr. Sanghi also urged

that in course of the proceedings, the entire amount involved in the three

cheques having been deposited, the criminal proceedings should not be

allowed to be continued and the order, quashing the criminal proceedings

should not be interfered with.

Having regard to the contentions raised by the counsel for the parties, two

questions really arise for our consideration :

(1) Was the High Court justified in coming to the conclusion that the

drawer has not been duly served with notice for payment?

(2) Whether deposit of the entire amount covered by three cheques, while

the matter is pending in this Court, would make any difference?

So for as the first question is concerned, it is no doubt true that all the

three requirements under clauses (a), (b) arid (c) must be complied with

before the offence under Section 138 of the Negotiable Instruments Act, can

be said to have been committed and Section 141 indicates as to who would be

the persons, liable in the event the offence is committed by a company. The

High Court itself on facts, has recorded the findings that conditions (a)

and (b) under Section 138 having been duly complied with and, therefore,

the only question is whether the conclusion of the High Court that

condition (c) has riot been complied with, can be said to be in accordance

with law. Mere dishonour of a cheque would not raise to a course of action

unless the payee makes a demand in writing to the drawer of the cheque for

the payment and the drawer fails to make the payment of the said amount of

money to the payee. The cheques had been issued by M/s Bhalla Techtran

Industries Limited, through its Director Shri Amit Bhalla. The appellant

had issued notice to said Shri Amit J. Bhalla, Director of M/s Bhalla

Techtran Industries Limited. Notwithstanding the service of the notice, the

amount in question was not paid, the object of issuing notice indicating

the factum of dishonour of the cheques is to give an opportunity to the

drawer to make payment within 15 days, so that it will not be necessary for

the payee to proceed against in any criminal action, even though the bank

dishonoured the cheques. It is Amit Bhalla, who had signed the cheques as

the Director of M/s Bhalla Techtran Industries Ltd. When the notice was

issued to said Shri Amit Bhalla, Director of M/s Bhalla Techtran Industries

Ltd., it was incumbent upon Shri Bhalla to see that the payments are made

within the stipulated period of 15 days. It is not disputed that Shri

Bhalla has not signed the cheques, nor is it disputed that Shri Bhalla has

not signed the cheques, nor is it disputed that Shri Bhalla was not the

Director of the company. Bearing in mind the object of issuance of such

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notice, it must be held that the notices cannot be construed in a narrow

technical way without examining the substance of the matter. We really fail

to Understand as to why the judgment of this court in Bilakchand Gyanchand

Co., [1999] 5 SCC 693, will have no application. In that case also criminal

proceedings had been initiated against A. Chinnaswami, who was the Managing

Director of the company and the cheques in question had been signed by him.

In the aforesaid premises, we have no hesitation to come to the conclusion

that the High Court committed error in recording a finding that there was

no notice to the drawer of the cheque, as required under Section 138 of the

Negotiable Instruments Act. In our opinion, after the cheques were

dishonoured by the bank the payee had served due notice and yet there was

failure on the part of the accused to pay the money, who had signed the

cheques, as the Director of the company. The impugned order of the High

Court, therefore, is liable to be quashed.

So far as the question of deposit of the money during the pendency of these

appeals is concerned, we may state that in course of hearing the parties

wanted to settle the matter in Court and it is in that connection, to prove

the bonafide, the respondent deposited the amount covered under all the

three cheques in the Court, but the complainant's counsel insisted that if

there is going to be a settlement, then all the pending cases between the

parties should be settled, which was, however, not agreed to by the

respondent and, therefore, the matter could not be settled. So far as the

criminal complaint is concerned, once the offence is committed, any payment

made subsequent thereto will not absolve the accused of the liability of

criminal offence, though in the matter of awarding of sentence, it may have

some effect on the Courts trying the offence. But by no stretch of

imagination, a criminal proceeding could be quashed on account of deposit

of money in the Court or that an order of quashing of criminal proceeding,

which is otherwise unsustainable in law, could be sustained because of the

deposit of money in this Court. In this view of the matter, the so-called

deposit of money by the respondent in this Court is of no consequence.

In the aforesaid premises, we set aside the impugned orders of the High

Court and allow these appeals and direct that the criminal proceedings

would be continued. The money which had been deposited by the accused in

this Court, may be refunded to the accused through his counsel. The

Magistrate is directed to dispose of the proceedings at an early date.