2020 (12) TMI 142 - HC - Indian Laws

Dishonor of cheque - drawer of Cheque - submits that sign on the cheque is of Gudia Shukla and not of the applicant and, therefore, he is not the drawer of the cheque and, therefore, summons could not have been issued to him - application did not appear in the Court inspite of the Summons issued - HELD THAT - It is not in dispute that applicant is the husband of Gudia Shukla. Specific averment has been made in the complainant that it is the applicant, who handed over the cheque in question to the complainant, which got dishonoured for insufficient funds. The question whether the applicant has put his signature on the cheque or not, is the question of evidence, which can be considered at an appropriate stage by the trial court - When the ingredients of Section 138 Negotiable Instruments Act are clearly established prima facie, this Court should not examine the evidence in detail inasmuch as it is for the trial court to examine the evidence whether the applicant has signed the cheque, which got dishonoured or not. This Court is of the opinion that if the applicant has a remedy under law, then permission from the Court is not necessary. Further, the offence under Section 138 Negotiable Instruments Act is a bailable offence and, the applicant may surrender before the court concerned and furnish bail bonds and thereafter, he may take recourse to the remedy as may be available to him in accordance with law - Application dismissed.

Summary

Issues:
Impugning order dated 16.3.2020 passed by the Additional District Judge/Special Judge in Criminal Revision No.746 of 2019 against the order dated 6.11.2019 in Complaint Case No.8468 of 2019 under Section 138 Negotiable Instruments Act.

Analysis:
The applicant filed an application under Section 482 Cr.P.C. challenging the order passed by the revisional court. The presiding officer had issued summons against the applicant after the cheque in question was dishonored, notice for payment was not complied with, and the applicant failed to appear in response to the summons. The revisional court dismissed the revision, finding that the ingredients of Section 138 Negotiable Instruments Act were prima facie established against the applicant. The court noted that the question of whether the applicant signed the cheque could be considered at a later stage.

The applicant argued that as the husband of the sole proprietor of the company on the cheque, he was not the drawer of the cheque, and thus, summons should not have been issued against him. The court acknowledged the relationship but emphasized that the complainant alleged the applicant handed over the dishonored cheque, making it a matter of evidence to be examined by the trial court. The court reiterated that the trial court should assess the evidence regarding the signature on the cheque.

The applicant requested permission to file a discharge application, which the court deemed unnecessary, as the applicant could avail himself of the remedy under the law independently. The court highlighted that the offense under Section 138 Negotiable Instruments Act is bailable, advising the applicant to surrender before the court, furnish bail bonds, and then pursue available legal remedies.

In conclusion, the court found no error in the impugned order by the revisional court and rejected the application under Section 482 Cr.P.C.