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138 of negotiable instrument act

(Querist) 09 May 2010 This query is : Resolved 
Is complaint of dishounoured cheque with endorsement 'signature differ' is maintainable U/S 138?

If yes, any authority regarding this?
Arvind Singh Chauhan (Expert) 09 May 2010
No.
Raj Kumar Makkad (Expert) 09 May 2010
It is duly maintainable. Can you contact me tomorrow morning after 9 AM for referring you appropriate citation?
Jithendra.H.J (Expert) 09 May 2010
"signature differs"

does not fall under section 138 of NI Act
G. ARAVINTHAN (Expert) 09 May 2010
138 case wont lie
Parveen Kr. Aggarwal (Expert) 09 May 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26-09-2008

CORAM:

THE HONOURABLE MR. JUSTICE S.TAMILVANAN

CRL.O.P.No.3635 of 2007

and M.P.No.1 of 2007

Dr.R.N.Baba .. Petitioner

vs.

Sheeba .. Respondent

For Petitioner : Mr.A.H.Srikanth

For Respondent : Mr.P.Sivamani

O R D E R

This petition has been filed under section 482 of the Code of Criminal Procedure by the petitioner / accused in C.C.No.197 of 2006 on the file of the District Musif-cum-Judicial Magistrate, Ambattur, seeking an order to quash the criminal proceeding.

2. Mr.A.H.Srikanth, learned counsel appearing for the petitioner submitted that the petitioner herein is the Honorary Secretary of Dr.Rabindran's Nalvazhvu Sangam, a registered society, running Hospital at Chennai and he is arrayed as accused in the case in C.C.No.197 of 2006 on a private complaint filed by the respondent herein for the alleged offence punishable under Section 138 of Negotiable Instruments Act and Section 420 of Indian Penal Code. According to the petitioner, one Haish Naidu, a staff of the Hospital run by the petitioner sangam misusing the cheque leaf had issued the cheque for Rs.1,50,000/- drawn on the UTI Bank Ltd., Anna Nagar in favour of the respondent / complainant towards mediclaim premium payable to her. While the cheque was presented for payment, it was returned by the bank with an endorsement that the signature of the account-holder differs, in such circumstances, according to the learned counsel appearing for the petitioner, the complaint itself is not maintainable and therefore, he pleaded that the criminal proceedings pending against the petitioner before the court below be quashed under Section 482 of the Code of Criminal Procedure. In support of his contention, the learned counsel cited the decision, Vinod Tanna vs. Zaher Siddiqui, reported in 2002 (7) SCC 541, wherein the Hon'ble Supreme Court has held that an incomplete signature will not attract Section 138 of the Negotiable Instruments Act.

3. According to the respondent, the said cheque was issued only by the petitioner for the amount payable to her on account of her mediclaim with the petitioner. The petitioner Dr.R.N.Baba has admitted that he is the person authorised to sign the cheque. Even in the legal notice, the respondent / complainant has specifically stated that the cheque, which was dishonoured by the Bank had been issued by the petitioner, hence, as per the averments of the complaint, it attracts Section 420 IPC. In the instant case, the learned counsel for the petitioner submitted that the person who signed the cheque is the Administrator of Dr.Rabindran's Nalvazhvu Sangam, which runs the Hospital and therefore, at this stage, it cannot be construed by this court that the cheque was issued by a staff of the Hospital without the knowledge of the petitioner by misusing the cheque leaf, though the authorised signatory is only the petitioner.

4. It is an admitted fact that the case pending against the petitioner herein is not merely only under Section 138 of Negotiable Instruments Act, but also under Section 420 IPC and hence, I am of the view that the decision cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of this case to quash the criminal proceeding, pending against the petitioner.

5. It is not in dispute that cheating and dishonestly inducing delivery of property is sufficient to attract Section 420 IPC. In R.S.Nayak vs. A.R.Antulay, reported in 1986 (2) SCC 716, the Hon'ble Supreme Court has held at page number 768 as under : "68. Section 415 actually consists of two parts, each part dealing with one way of cheating :

1. Where, by deception practised upon a person the accused dishonestly or fraudulently induces that person to deliver property to any person or to consent that any person shall retain any property;

2. Where, by deception practised upon a person, the accused intentionally induces that person to do or omit to do anything which he would not do or omit to do, if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property." Wherein it was ruled by the Hon'ble Apex Court that prima facie case was made out against the accused by the prosecution in respect of the allegations for the charges under Sections 120 B and 420 IPC, apart from other sections, but the trial court had failed to frame necessary charges for the trial of the case and therefore, charge under Section 420 IPC should be framed by the trial court against the accused therein.

6. In the case on hand, as per the complaint filed by the respondent before the trial court, there are averments and allegations against the petitioner / accused in order to attract Sections 138 of Negotiable Instruments Act and 420 IPC. It is an admitted fact that the cheque that was dishonoured had been issued in the cheque leaf of the petitioner herein towards the payment of mediclaim to the respondent, who underwent treatment in the hospital run by the petitioner. Whether the cheque was issued by the staff of the hospital with the knowledge of the petitioner or not is yet to be decided, based on the evidence to be adduced. Hence, there is a prima facie case and as such, there is no illegality to quash the proceedings at this stage under Section 482 Cr.P.C.

7. Had the case been initiated only under Section 138 of Negotiable Instruments Act, the petitioner could have advanced his argument that the criminal proceeding is not maintainable against the petitioner, by relying on the decision cited above. As contended by the learned counsel for the respondent, the court below has to decide the alleged offence against the petitioner, both under Section 138 of Negotiable Instruments Act and Section 420 IPC, based on the evidence, as there is a case made out against the petitioner to be tried on merits.

8. There is a prima facie case against the petitioner and there is a clear allegation of offence against the petitioner under Section 420 IPC, apart from Section 138 of Negotiable Instruments Act, even as per the legal notice issued by the respondent, prior to the filing of the complaint. Hence, I am of the view that it is not a fit case to invoke Section 482 of the Code of Criminal Procedure and quash the proceedings. As contemplated under Section 482 of the Code of Criminal Procedure, this Court is vested with the inherent power to make such orders, as may be necessary to give effect to any order under the code or to prevent abuse of the process of any court, subordinate to this Court and to secure the ends of justice. The inherent power of this court vested under Section 482 of the Code of Criminal Procedure is only to prevent the abuse of process of the court and to meet the ends of justice and not otherwise. In the instant case, I could find no such circumstances to invoke Section 482 Cr.P.C and quash the criminal proceeding, pending in C.C.No.197 of 2006 on the file of the District Munsif-cum-Judicial Magistrate, Ambattur, since there is prima facie case made out against the petitioner.

9. It is not in dispute that in a criminal case, the burden of proof is on the prosecution to prove the case against the accused beyond all reasonable doubts and the benefit of doubt should be given to the accused. However, to quash a criminal proceeding under Section 482 Cr.P.C, there should be material available to establish that there is no prima facie case made out against the petitioner to prosecute him before the court below. In Mushtaq Ahmed vs. Mohd Habibur Rehman Faizi and others reported in 1996 (7) SCC 440, it has been held that when a prima facie case of cheating is made out, the criminal proceedings cannot be quashed by the High Court, by deciding which of the rival version was true. On the facts and circumstances of this case, as there is prima facie case made out against the petitioner, I am of the view that the criminal proceedings, pending before the court below cannot be quashed at this stage by invoking Section 482 of the Code of Criminal Procedure.

10. In the result, the Criminal Original Petition fails and accordingly, the same is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, considering the facts and circumstances, the court below is directed to dispose the case on merits and in accordance with law, within a period of five months from the date of receipt of a copy of this order. No costs.
N.K.Assumi (Expert) 10 May 2010
Thank you Praveen for the citation.
Jithendra.H.J (Expert) 10 May 2010
as per the above citation the complaint lies if it is filed for the offence punishable under 420 of IPC
Jithendra.H.J (Expert) 10 May 2010
Refer : Babulal Nainmal Jain Vs Khmji Ratanshi Dedhia 1999 (1) Civil Court cases 0541(Bombay)
Adinath@Avinash Patil (Expert) 11 May 2010
THANX PARVEEN FOR ABOVE CITATION.


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