Sardar Jasvir Singh Son of Sardar Hardev Singh and Sardar Ranjit Singh Son of Sardar Hardev Singh Vs. State of Uttar Pradesh and Ayyaz Ali Khan Son of Fayyaz Ali Khan - Court Judgment

Barkat Ali Zaidi, J.

1. The Bareilly Consumer Court decreed the claim of the complainant/ Respondent No. 2 against. The Punjab Auto Finance, Bareilly' represented by the petitioners for Rs. 15,000/-. The claim in the Consumer Forum Court was against the Punjab Auto Finance and its partners Jasvir Singh and his father Sri Hardev Singh. Sri Hardev Singh is now dead and now in his place, complainant-respondent No. 2 has brought in his other son petitioner No. 2 Sardar Ranjit Singh. Both petitioners are real brothers.

2. After passing of the decree by the consumer Court on 9.8.2004 , the decree holder made an application before the Consumer Forum that the decree was realized out side the Court. The cheque dated 9/10.8.2004 for Rs. 15000/- issued by the petitioner Jasvir Singh ( for Self or Bearer) was presented by the respondent No. 2 to Urban Co-operative Bank Ltd. Bareilly but was returned with the remark insufficient funds in the account'. Thereafter, the complainant- respondent No. 2 gave a notice as required under Sub-clause (b) of Proviso of Section 138 of The Negotiable Instruments Act, 1881 and then filed a complaint before the Chief Judicial Magistrate, Bareilly under Section 138 of The Negotiable Instruments Act. The Magistrate summoned both the accused -petitioners and the application of the accused-petitioners for discharge was dismissed by the Magistrate. It is against this order that the petitioners have come to this Court under Section 482 Cr.P.C.

3. I have heard Sri Vinay Khare, Advocate for the petitioners and Sri Patanjali Mishra, learned A.G.A. for the Opp.Party State.

4. The contention of the petitioners is two fold;

(i) That the petitioner Sardar Ranjit Singh has been wrongly impleaded and has nothing to do with the matter and cannot be fastened with a liability in connection of the transaction.

(ii) That the petitioner Jasvir Singh did not give the cheque to the complainant-respondent No. 2 in discharge of the decree and it was mend for himself, some-how, it came in possession of complainant- respondent No. 2, and as such, no case against him can be said to be made out and he ought to have been discharged by the Magistrate.

5. As regards the contention No. 1, the same should be accepted. The petitioner Sardar Ranjit Singh should be exonerated from any liability in this regard because he has been impleaded only for the reasons that he happens to be the son of late Sri Hardev Singh, who was one of the partners of the firm. It has not been shown that he holds any office or position in the firm. In order to fix liability on the petitioner Sardar Ranjit Singh, it was necessary that it should have been shown that he was connected with the management of the firm or hold any office in the said firm. The only reason that he has been impleaded, is that he happens to be the son of late Sri Hardev Singh, who was one of the partners of the firm and that obviously cannot be a ground to implead him as accused in this case. His contention in this regard must, therefore, be upheld and he has to be discharged and exonerated.

6. With regard to the contention of Jasvir Singh that he did not issue the cheque in satisfaction of the decree of the Consumer Forum and the cheque was only meant for himself, it will be noticed that an application was given by Complainant- respondent No. 2 before the consumer Court that the decree has been realized out-side the Court and satisfaction may be recorded. The application was given on 9.8.2004 and the cheque was also issued on the said date. The Complainant-respondent No. 2 could not have given any such application before the consumer forum if the cheque not been given to him.

7. The contention of accused Jasvir Singh was that the cheque was lost and misplaced and he also informed the Thana police in this regard. It has not been explained as to how it came in the possession of the complainant-respondent No. 2.

8. It was also pointed out that the cheque was not issued in the name of respondent No. 2- complainant but was for self, which will show that it was not mend for complainant-respondent No. 2. It is further pointed out that the complainant-respondent No. 2 was neither 'Payee' or the ' Holder' as contemplated in Sub-clause (b) of the Proviso of Section 138 of The Negotiable Instruments Act, 1881 because the cheque was in the name of 'Self and he was not, therefore, legally liable under the provisons of the Negotiable Instruments Act.

9. Section 138 of the aforesaid Act is as follows:

Dishonour of cheque for insufficiency, etc. of funds in the account:- where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any dept or other liability, is returned by the bank unpaid, either because of 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of

Provided that nothing contained in this section shall apply unless-

(a) the 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.

(b) the payee or the holder in due course of the cheque, as the case may be, 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 thirty days ] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

10. The question is that whether the Complainant-Respondent No. 2 can be called as a 'Holder in due Course' of the cheque within the meaning of the proviso of Section 138 of The Negotiable Instruments Act. 'Holder in due Course' has been defined in Section 9 of the aforesaid Act, which is as follows:

Holder in due course 'means any person who for consideration became the possessor of a promissory note bill of exchange or cheque if payable to bearer or the payee or indorsee thereof if [payable to order] before the amount mentioned in it became payable and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.

11. It will appear from the above definition that the Holder in due course includes person who comes in possession of, cheque. The respondent No. 2 was in possession of a cheque because he held a decree for the same amount against the petitioner Jasvir Singh. The cheque is payable to self or bearer as will appear from the copy of cheque on record. The above definition includes a cheque which is payable to bearer. The respondent No. 2 was in possession of the cheque and the cheque was payable to bearer also. The respondent No. 2 should , therefore, deemed to be Holder in Due Course of the cheque as contemplated in the aforesaid provisions of the Negotiable Instruments Act and it cannot be said that he will have no locus to file a complaint.

12. The circumstances as enumerated above loudly proclaim that the cheque was given by petitioner Jasvir Singh in satisfaction of the Decree of Consumer Court against him. Prima-facie therefore, the case against him under Section 138 of the aforesaid Act is maintainable and the Magistrate's order summoning him cannot be faulted.

13. With the result, petitioner No. 2 Sardar Ranjit Singh is discharged and exonerated. The petition succeeds to that extent, but the remaining, it fails and is accordingly dismissed.

14. A copy of this order be sent by Registry forthwith to Chief Judicial Magistrate, Bareilly through District Judge, Bareilly for keeping on record of Criminal Complaint Case No. 5880 of 2004 under Section 138 of The Negotiable le Instruments Act.