Maheswar MishrA. Vs. State of Orissa and anr. - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] - narcotics drugs & psychotropic substance act, 1985 - sections 8 - prohibition of certain operations -- the suspected narcotic recovered from the appellant was seized under seizure memo, exhibit p.22. the trial court by judgment and order dated 9.11.2005 passed in special case no.4/2005 held all the three accused, including the appellant guilty of offences punishable under sections 8/21(b) of the ndps act and sentenced them as noted above. against the judgment of the trial court, the appellant preferred criminal appeal no.2511/2005 before the high court. the high court dismissed both the appeals by judgment and order dated april 17, 2008. the appellant alone has come in appeal against the judgment of the high court. the present appeal arises out of the judgment dated 10.12.2007 passed by the learned single judge of the high court of allahabad (lucknow bench) whereby the learned single judge has dismissed the tax revision filed by the appellant under section 11 of the u. p. trade tax act (hereinafter referred to as "the act") impugning the judgment dated 14.8.2007 passed by the trade tax tribunal, lucknow rejecting the second appeal of the appellant/assessee. the interest charge on the tax could not have been charged under section 8(1) as the case falls under section 8(1b). as in the present case the tax becomes admittedly payable once it has been held that the tax is payable under the act, the interest would be payable in terms of subsection (1) of section 8 of the act and not in terms of subsection (1b) of section 8 of the act. this court in the case of commissioner of sales tax v. qureshi crucible centre, 1993 supp (3) scc 495 has held that where a dealer fails to pay tax at the correct rate because he claimed not to know the revision in the rate, the dealer remains liable to pay interest at a higher rate, penal rate under section 8 (1) from the date when the tax became due and payable. 1. the petitioner assails the order of the learned s.d.j.m.(sadar), cuttack in 1cc no.127 of 2007 dated 09.02.2007 taking cognizance of the offence under section 138 of the negotiable instruments act, 1881(hereinafter referred to as the 'act' for brevity) and issuing processes against him.2. the opposite party, i.e. the complainant before the learned lower court, is the proprietor/owner of m/s m.s. fabricator and coach builder, link road, cuttack. it is alleged that the accused is the owner of the buses named and styled, "laxmi", bearing registration no.0r-05-h-5265, and "great india" bearing registration no.0r-02-j-6336 as well as the proprietor of bharati construction. the accused, the present petitioner, allegedly requested the complainant to repair the body of the aforementioned buses, for an estimated cost of rs. 4,99,611/-. the accused has paid rs.4,35,000/- prior to final settlement of the cost of the repair. as such, the accused had to pay a sum of rs. 59,611/-. on 31.12.2006, the accused after acknowledging the outstanding dues with him allegedly issued the cheque of indian overseas bank, rourkela bearing no.116976 for rs.50,000/- in favour of the complainant. but subsequently when the complainant presented the same for encashment, it was dishonoured. hence, he issued notice to the accused demanding payment of the money. since the accused did not pay the money, he initiated a complaint case for the offence under section 138 of the act. the learned magistrate after taking initial statement and perusing the documents filed by the complainant took cognizance of the offence and issued summons against the present petitioner. such order of cognizance and issuance of process has been challenged in this revision.3. in course of hearing of the revision, the learned counsel for the petitioner mainly based his argument on two grounds, viz., (i) that since the cheque was dishonoured due to countermanding and difference in signature of the drawer, a case under section 138 of the act is not made out; and (ii) certain documents were executed by one nirod chandra maharana on 16.11.2006 and 17.11.2006 indicating that the cheque bearing no.116976 for a sum of rs.50,000/- was issued by the accused maheswar mishra in the name of the complainant towards security for arranging money for repairing the vehicle with a promise and assurance that the cheque will be returned to the said maheswar mishra. hence, it is submitted that a case under section 138 of the act is not made out.4. learned counsel for the opposite parties, on the other hand, submitted the findings recorded by the learned trial court and prayed to dismiss the revision application. at the outset, it is seen that the documents filed by the complainant show that the cheque has been dishonoured for "payment countermanding by the drawer" and "drawer's signature differs". there is no dispute that the said cheque was issued by said maheswar mishra. the difference in signature appearing on the impugned cheque is of no consequence at this stage. the only point to be considered in this case is whether, when the payment against the cheque was countermanded by the drawer and the bank dishonours the cheque, a prima facie offence under section 138 of the act is made out or not. this question came for consideration before the hon'ble apex court in goa plast (p) ltd., v. chico ursulu d"souza, (2004) 27 ocr (sc)-476, wherein the apex court has held that a party should not be allowed to get way from the penal provision of section 138 of the act on the ground that he has given instructions to the bank to stop payment of cheque after issuing the same against a debt or liability.5. once the cheque is issued by a drawer, a presumption under section 139 must follow and merely because the drawer issued notice to the drawer or to the bank for stoppage of payment it will not preclude an action of section 138 of the act by the drawer or the holder of the cheque in due course. a contrary view will 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 advantages of one's own wrong. thus, it is held that the order of cognizance is not bad on the ground of countermanding of the cheque.6. coming to the second contention raised by the learned counsel for the petitioner, it is observed that at the stage of taking cognizance it is duty of the court to look into the materials placed before it by the complainant to find out whether there is reasonable ground for proceeding against the accused. at the stage of taking cognizance, the accused has no locus-standi. it is not necessary for the court taking cognizance to view the case in the light of defence case suggested. thus, the contention raised by learned counsel for the petitioner that the cheque was issued at the instance of the brother of the complainant as a security for arranging money for repairing the vehicle, which was not to be negotiated, shall be considered at the time of the trial of the case. it is needless to say that the petitioner is at liberty to raise any such points before the trial court in course of trial of the offence. that being the case, this court finds no reason to interfere with the order of the learned trial court, wherein he has taken cognizance of offence under section 138 of the act.8. the parties are directed to appear before the learned magistrate within three weeks. the learned s.d.j.m.(sadar), cuttack or any magistrate, to whose court, the case is transferred shall do well to dispose of the case, as expeditiously as possible, preferably by the end of april, 2010.the crlrev is accordingly disposed of. send back the l.c.r. immediately. stay order passed in misc. case no.79 of 2008 stands vacated. revision disposed of.

Judgment:
1. The petitioner assails the order of the learned S.D.J.M.(Sadar), Cuttack in 1CC No.127 of 2007 dated 09.02.2007 taking cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881(hereinafter referred to as the 'Act' for brevity) and issuing processes against him.

2. The opposite party, i.e. the complainant before the learned lower court, is the Proprietor/Owner of M/s M.S. Fabricator and Coach Builder, Link Road, Cuttack. It is alleged that the accused is the owner of the Buses named and styled, "Laxmi", bearing Registration No.0R-05-H-5265, and "Great India" bearing Registration No.0R-02-J-6336 as well as the Proprietor of Bharati Construction. The accused, the present petitioner, allegedly requested the complainant to repair the body of the aforementioned buses, for an estimated cost of Rs. 4,99,611/-. The accused has paid Rs.4,35,000/- prior to final settlement of the cost of the repair. As such, the accused had to pay a sum of Rs. 59,611/-. On 31.12.2006, the accused after acknowledging the outstanding dues with him allegedly issued the Cheque of Indian Overseas Bank, Rourkela bearing No.116976 for Rs.50,000/- in favour of the complainant. But subsequently when the complainant presented the same for encashment, it was dishonoured. Hence, he issued notice to the accused demanding payment of the money. Since the accused did not pay the money, he initiated a complaint case for the offence under Section 138 of the Act. The learned Magistrate after taking initial statement and perusing the documents filed by the complainant took cognizance of the offence and issued summons against the present petitioner. Such order of cognizance and issuance of process has been challenged in this revision.

3. In course of hearing of the revision, the learned counsel for the petitioner mainly based his argument on two grounds, viz., (i) that since the Cheque was dishonoured due to countermanding and difference in signature of the drawer, a case under Section 138 of the Act is not made out; and (ii) certain documents were executed by one Nirod Chandra Maharana on 16.11.2006 and 17.11.2006 indicating that the Cheque Bearing No.116976 for a sum of Rs.50,000/- was issued by the accused Maheswar Mishra in the name of the complainant towards security for arranging money for repairing the vehicle with a promise and assurance that the Cheque will be returned to the said Maheswar Mishra. Hence, it is submitted that a case under Section 138 of the Act is not made out.

4. Learned counsel for the opposite parties, on the other hand, submitted the findings recorded by the learned trial court and prayed to dismiss the revision application. At the outset, it is seen that the documents filed by the complainant show that the Cheque has been dishonoured for "payment countermanding by the drawer" and "drawer's signature differs". There is no dispute that the said Cheque was issued by said Maheswar Mishra. The difference in signature appearing on the impugned Cheque is of no consequence at this stage. The only point to be considered in this case is whether, when the payment against the Cheque was countermanded by the drawer and the Bank dishonours the Cheque, a prima facie offence under Section 138 of the Act is made out or not. This question came for consideration before the Hon'ble Apex Court in Goa Plast (P) Ltd., v. Chico Ursulu D"Souza, (2004) 27 OCR (SC)-476, wherein the Apex Court has held that a party should not be allowed to get way from the penal provision of Section 138 of the Act on the ground that he has given instructions to the Bank to stop payment of Cheque after issuing the same against a debt or liability.

5. Once the Cheque is issued by a drawer, a presumption under Section 139 must follow and merely because the drawer issued notice to the drawer or to the bank for stoppage of payment it will not preclude an action of Section 138 of the Act by the drawer or the holder of the Cheque in due course. A contrary view will 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 advantages of one's own wrong. Thus, it is held that the order of cognizance is not bad on the ground of countermanding of the Cheque.

6. Coming to the second contention raised by the learned counsel for the petitioner, it is observed that at the stage of taking cognizance it is duty of the court to look into the materials placed before it by the complainant to find out whether there is reasonable ground for proceeding against the accused. At the stage of taking cognizance, the accused has no locus-standi. It is not necessary for the court taking cognizance to view the case in the light of defence case suggested. Thus, the contention raised by learned counsel for the petitioner that the Cheque was issued at the instance of the brother of the complainant as a security for arranging money for repairing the vehicle, which was not to be negotiated, shall be considered at the time of the trial of the case. It is needless to say that the petitioner is at liberty to raise any such points before the trial court in course of trial of the offence. That being the case, this Court finds no reason to interfere with the order of the learned trial court, wherein he has taken cognizance of offence under Section 138 of the Act.

8. The parties are directed to appear before the learned Magistrate within three weeks. The learned S.D.J.M.(Sadar), Cuttack or any Magistrate, to whose court, the case is transferred shall do well to dispose of the case, as expeditiously as possible, preferably by the end of April, 2010.

The CRLREV is accordingly disposed of. Send back the L.C.R. immediately. Stay order passed in Misc. Case No.79 of 2008 stands vacated. Revision disposed of.