Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 471 of 2015, Judgment Date: Mar 19, 2015

  •  Whether the cheques were given as security or not,  or  whether  there
          was outstanding liability or not is a question  of  fact  which  could
          have been determined only by the trial court after recording  evidence
          of the parties. In  our  opinion,  the  High  Court  should  not  have
          expressed its view on the disputed questions of  fact  in  a  petition
          under Section 482 of the Code of Criminal  Procedure,  to  come  to  a
          conclusion that the offence is not made out.  The High Court has erred
          in law in going into the factual aspects of the matter which were  not
          admitted between  the  parties.   The  High  Court  further  erred  in
          observing that Section 138(b)  of  N.I.  Act  stood  uncomplied,  even
          though the respondent no.1 (accused) had admitted that he replied  the
          notice issued by the complainant.  Also, the fact, as to  whether  the
          signatory of demand notice was authorized by the  complainant  company
          or not, could not  have  been  examined  by  the  High  Court  in  its
          jurisdiction under Section 482 of the Code of Criminal Procedure  when
          such plea was controverted by the complainant before it.
  •  Ordinarily, a defence of an accused although appears  to  be
               plausible should not be taken into consideration for exercise of
               the said jurisdiction. Yet again, the High Court at  that  stage
               would not ordinarily enter into a disputed question of fact. It,
               however, does not mean that documents of unimpeachable character
               should not be taken into  consideration  at  any  cost  for  the
               purpose of finding out as to whether continuance of the criminal
               [pic]proceedings would amount to an abuse of process of court or
               that the complaint petition is filed for causing mere harassment
               to the accused. While we are not  oblivious  of  the  fact  that
               although  a  large  number  of  disputes  should  ordinarily  be
               determined only by the civil  courts,  but  criminal  cases  are
               filed only for achieving the ultimate goal, namely, to force the
               accused to pay the amount due to  the  complainant  immediately.
               The courts on the one hand should not encourage such a practice;
               but, on the other, cannot also travel beyond its jurisdiction to
               interfere with the proceeding which is  otherwise  genuine.  The
               courts cannot also lose  sight  of  the  fact  that  in  certain
               matters, both civil proceedings and criminal  proceedings  would
               be maintainable.'
  •  Earlier also in
          Modi Cements Ltd. vs. Kuchil Kumar Nandi[4], this Court has  clarified
          that if a cheque is dishonoured because of  stop  payment  instruction
          even then offence punishable  under  Section  138  of  N.I.  Act  gets
          attracted.
  • For the reasons as discussed above, we find that the  High  Court  has
          committed grave error of law in quashing the criminal complaints filed
          by the appellant in respect of offence punishable under Section 138 of
          the N.I. Act, in exercise of powers under Section 482 of the  Code  of
          Criminal Procedure by accepting factual defences of the accused  which
          were disputed ones.  Such defences, if taken before trial court, after
          recording of the evidence, can be better appreciated.
  •  Accordingly, the appeals are  allowed.   The  impugned
          order dated 25.2.2004 passed by High Court of Kerala in Criminal  M.C.
          Nos. 2366 of 2008 and 2367 of 2008   is  hereby  quashed.   The  trial
          court shall proceed with the trial in the  criminal  complaint  cases. 
          
 

                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 471  OF 2015
                (Arising out of SLP (Crl) No. 5295 OF  2014)



      HMT Watches Ltd.                                        ... Appellant

                                   Versus

      M.A. Abida & Anr.                                     ... Respondents

                                   WITH

                  CRIMINAL APPEAL NO. 472   OF 2015
                 (Arising out of SLP(Crl) No. 5800 OF  2014)




                               J U D G M E N T



      PRAFULLA C.  PANT, J.


            These appeals are directed  against  judgment  and  order  dated
      25.2.2014 passed by the High Court of Kerala in Criminal M.C. No  2366
      of 2008 and Criminal M.C. No. 2367 of 2008, whereby the said Court has
      allowed  the  petitions  and  quashed  the  proceedings  of   criminal
      complaint case Nos. 1790, 1791, 1792, 1793, 1794,  1795,  1796,  1824,
      1825, 1826, 1827, 1828, 1829, 1830 and 1831 of  2007  pending  in  the
      Court of Judicial First Class Magistrate (Court No.  IV),  Kochi;  and
      C.C. Nos. 1208, 1209, 1210,1211 and 1212 of 2007, pending in the Court
      of Judicial First Class Magistrate (Court No. III), Kochi.  All  these
      criminal complaint cases were pertaining to offence  punishable  under
      Section 138 of  the  Negotiable  Instruments  Act,  1881  (hereinafter
      referred to as "the N.I. Act").

   2. We have heard learned counsel for the parties and perused  the  papers
      on record.

   3. Succinctly  stated,  the  appellant  filed  criminal  complaint  cases
      against respondent - M.A. Abida stating that as  many  as  57  cheques
      dated 28.09.2006 were  issued  by  her  in  discharge  of  outstanding
      liability towards the complainant/appellant (HMT Watches Ltd.).   When
      the cheques were presented for collection the same were received back,
      dishonoured by bankers with the endorsement - "payment stopped by  the
      drawer".   Notice  of  demand  dated  9.10.2006  was  issued  by   the
      complainant to the respondent no.1 but she failed to make the  payment
      of the amount mentioned in the cheques, i.e., total  Rs.1,79,86,357/-.
      Instead, she sent reply to the notice disputing liability to pay.   On
      this, complainant filed twenty criminal  complaints  mentioned  above,
      against the respondent no.1 with  regard  to  the  offence  punishable
      under Section 138 of the N.I. Act.

   4. The accused - M.A. Abida filed Criminal M.C.  No.  2366  of  2008  and
      Criminal M.C. No. 2367 of 2008 challenging the  proceedings  initiated
      by the complainant on the ground that she was Re-Distribution Stockist
      (RDS) of watches manufactured by the appellant.  The business with the
      appellant was done till September, 2003 on  "cash  and  carry"  basis.
      The accused further pleaded in the petitions  filed  before  the  High
      Court under Section 482 of the Code of Criminal Procedure, that  after
      2003 the appellant company used to collect cheques towards the  amount
      covered by distinct invoices with respect to various consignments  for
      securing payment of amount covered by the invoices.

   5. The High Court accepted the plea of the accused (respondent no.1)  and
      quashed the criminal complaint cases.  Hence,  these  appeals  through
      special leave.

   6. On behalf of the appellant, it is argued before us that the High Court
      committed a grave error of law in  quashing  the  proceedings  of  the
      criminal complaint cases on the factual pleas taken by the  respondent
      no.1.  On the other hand, learned  counsel  for  the  respondent  no.1
      contended that since the cheques were given as security, as such there
      was no liability to make the  payment,  and  the  ingredients  of  the
      offence punishable under Section 138 of the N.I Act were not made out.

   7. Section 138 of the Negotiable Instruments Act, 1881 reads as under:

           "138. Dishonour of cheque for insufficiency, etc., of  funds  in
           the accounts. - 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 debt or other  liability,
           is returned by the bank unpaid, either because of 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, such
           person shall be deemed to have committed an offence  and  shall,
           without prejudice to  any  other  provisions  of  this  Act,  be
           punished with imprisonment for "a term which may extend  to  two
           year", or with fine which may extend to twice the amount of  the
           cheque, or with both:


           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 cheques 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.

           Explanation: For the purpose of this  section,  "debt  or  other
           liability" means a legally enforceable debt or other liability."



   8. Section 139 of the Negotiable  Instruments  Act,  1881  provides  that
      there shall be a presumption in favor of holder of a cheque as to  the
      debt or liability.  It reads as under:

           "139. Presumption in favour of holder.  - It shall be  presumed,
           unless the Contrary is proved,  that  the  holder  of  a  cheque
           received the cheque of the nature referred to in section 138 for
           the discharge, in whole  or  in  part,  or  any  debt  or  other
           liability."

   9. Section 140 of the Negotiable Instruments  Act,  1881  prohibits  what
      cannot be a defence in a prosecution in respect of offence  punishable
      under Section 138 of the N.I. Act.  It reads as under:

           "140. Defence which may not be allowed in any prosecution  under
           section  138.  -  Defence  which  may  not  be  allowed  in  any
           prosecution under section 138 It shall not be  a  defence  in  a
           prosecution of an offence under section 138 that the drawer  had
           no reason to believe when he issued the cheque that  the  cheque
           may be dishonoured on presentment for the reasons stated in that
           section."


  10. Having heard learned counsel for the parties, we are of the view  that
      the accused (respondent no.1) challenged the proceedings  of  criminal
      complaint cases  before  the  High  Court,  taking  factual  defences.
      Whether the cheques were given as security or not,  or  whether  there
      was outstanding liability or not is a question  of  fact  which  could
      have been determined only by the trial court after recording  evidence
      of the parties. In  our  opinion,  the  High  Court  should  not  have
      expressed its view on the disputed questions of  fact  in  a  petition
      under Section 482 of the Code of Criminal  Procedure,  to  come  to  a
      conclusion that the offence is not made out.  The High Court has erred
      in law in going into the factual aspects of the matter which were  not
      admitted between  the  parties.   The  High  Court  further  erred  in
      observing that Section 138(b)  of  N.I.  Act  stood  uncomplied,  even
      though the respondent no.1 (accused) had admitted that he replied  the
      notice issued by the complainant.  Also, the fact, as to  whether  the
      signatory of demand notice was authorized by the  complainant  company
      or not, could not  have  been  examined  by  the  High  Court  in  its
      jurisdiction under Section 482 of the Code of Criminal Procedure  when
      such plea was controverted by the complainant before it.

  11. In Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited  and
      others[1], this Court has made following observations  explaining  the
      parameters of  jurisdiction  of  the  High  Court  in  exercising  its
      jurisdiction under Section 482 of the Code of Criminal Procedure: -
           "17. The  parameters  of  jurisdiction  of  the  High  Court  in
           exercising its jurisdiction under Section 482  of  the  Code  of
           Criminal Procedure is now well settled. Although it is  of  wide
           amplitude, a great deal of  caution  is  also  required  in  its
           exercise. What is required  is  application  of  the  well-known
           legal principles involved in the matter.

                       xxx              xxx             xxx

           22. Ordinarily, a defence of an accused although appears  to  be
           plausible should not be taken into consideration for exercise of
           the said jurisdiction. Yet again, the High Court at  that  stage
           would not ordinarily enter into a disputed question of fact. It,
           however, does not mean that documents of unimpeachable character
           should not be taken into  consideration  at  any  cost  for  the
           purpose of finding out as to whether continuance of the criminal
           [pic]proceedings would amount to an abuse of process of court or
           that the complaint petition is filed for causing mere harassment
           to the accused. While we are not  oblivious  of  the  fact  that
           although  a  large  number  of  disputes  should  ordinarily  be
           determined only by the civil  courts,  but  criminal  cases  are
           filed only for achieving the ultimate goal, namely, to force the
           accused to pay the amount due to  the  complainant  immediately.
           The courts on the one hand should not encourage such a practice;
           but, on the other, cannot also travel beyond its jurisdiction to
           interfere with the proceeding which is  otherwise  genuine.  The
           courts cannot also lose  sight  of  the  fact  that  in  certain
           matters, both civil proceedings and criminal  proceedings  would
           be maintainable.'

  12. In Rallis India Limited v. Poduru Vidya Bhushan  and  others[2],  this
      Court expressed its views on this point as under:-
           "12. At the threshold, the High Court should not have interfered
           with the cognizance of the complaints having been taken  by  the
           trial court. The  High  Court  could  not  have  discharged  the
           respondents of the said liability at the threshold.  Unless  the
           parties are given  opportunity  to  lead  evidence,  it  is  not
           possible to come to a definite conclusion as  to  what  was  the
           date when the earlier partnership was dissolved and  since  what
           date the respondents ceased to be the partners of the firm."

      In view of the law laid down by this Court as above,  in  the  present
      case High Court exceeded its jurisdiction by  giving  its  opinion  on
      disputed questions of fact, before the trial court.

  13. Lastly, it is contended on behalf of the respondent no.1 that  it  was
      not a case of insufficiency of fund, as such, ingredients  of  offence
      punishable under Section 138 of the N.I.Act are not made out.  We  are
      not  inclined  to  accept  the  contention  of  learned  counsel   for
      respondent no.1.  In this connection, it is sufficient to mention that
      in the case of Pulsive Technologies P. Ltd. vs. State  of  Gujarat[3],
      this Court has already held that instruction of "stop payment"  issued
      to the banker could be sufficient to make the accused  liable  for  an
      offence punishable under Section 138 of the N.I. Act.  Earlier also in
      Modi Cements Ltd. vs. Kuchil Kumar Nandi[4], this Court has  clarified
      that if a cheque is dishonoured because of  stop  payment  instruction
      even then offence punishable  under  Section  138  of  N.I.  Act  gets
      attracted.

  14. For the reasons as discussed above, we find that the  High  Court  has
      committed grave error of law in quashing the criminal complaints filed
      by the appellant in respect of offence punishable under Section 138 of
      the N.I. Act, in exercise of powers under Section 482 of the  Code  of
      Criminal Procedure by accepting factual defences of the accused  which
      were disputed ones.  Such defences, if taken before trial court, after
      recording of the evidence, can be better appreciated.

  15. Therefore, for the reasons, as discussed above, these appeals  deserve
      to be allowed.  Accordingly, the appeals are  allowed.   The  impugned
      order dated 25.2.2004 passed by High Court of Kerala in Criminal  M.C.
      Nos. 2366 of 2008 and 2367 of 2008   is  hereby  quashed.   The  trial
      court shall proceed with the trial in the  criminal  complaint  cases.
      It is  clarified  that  we  have  not  expressed  our  opinion  as  to
      correctness of the defence pleas taken by  the  respondent  no.1.   No
      order as to costs.

                                    ......................................J.
                                                           [Dipak Misra]


                                    ......................................J.
                                                      [Prafulla C. Pant]
      New Delhi;
      March 19, 2015

-----------------------
[1] (2008) 13 SCC 678
[2] (2011) 13 SCC 88
[3] (2014) 9 SCALE 437
[4] (1998) 3 SCC 249