2021 (8) TMI 821 - HC - Indian Laws

Dishonor of Cheque - the applicant has issued the cheque of his father under own signatures - only defence of the applicant is that the cheque does not belong to him - Section 138 of Negotiable Instrument Act - HELD THAT - The bank account is of the father of the applicant. Therefore, it is clear that the applicant had an access to the cheque book, which was issued by the bank in favour of his father. The case of the respondent is that there was a transaction of ₹ 7,00,000/- between the respondent and the applicant and in lieu of that, disputed cheque was issued. For the purposes adjudicating this application filed under Section 482 of Cr.P.C. this Court is of prima facie opinion that the applicant tried to cheat the respondent by issuing a cheque of his father. The fact is that the bank account as well as cheque book belongs to the father of the applicant and the applicant had access to the same. In absence of any challenge to signatures of the applicant on the disputed cheque, this Court is of the considered opinion that at present it cannot be said that the applicant is not liable to be prosecuted under Section 138 of the N.I.Act. In the light of misleading stand taken by the applicant as well as in the light of the fact that prima facie, the applicant has issued the cheque of his father under own signatures, it is clear that he has also tried to cheat the respondent. By allowing the revision and remanding the matter back, the Revisional Court had committed a mistake by directing the Trial Court to consider the question of issuance of summons after taking note of the defence of the applicant - Application dismissed.

Summary

Issues:
- Challenge against order of taking cognizance under Section 138 of Negotiable Instrument Act
- Dispute regarding ownership of cheque and bank account
- Allegation of fraud and cheating by issuing cheque
- Review of Trial Magistrate's order
- Jurisdiction to review own order
- Delay in deciding criminal complaint

Analysis:
The case involves a challenge against the order of taking cognizance under Section 138 of the Negotiable Instrument Act. The applicant contested that the cheque in question did not belong to him, and neither did the bank account. The applicant argued that since the bank account was not his, a complaint under Section 138 would not be maintainable. However, the respondent's counsel contended that the applicant did not deny his signatures on the cheque, raising doubts about the applicant's defense. The court noted that the bank account belonged to the applicant's father, and despite the applicant's claims, he had access to the cheque book issued by the bank in his father's favor. The court found prima facie evidence that the applicant attempted to cheat the respondent by issuing a cheque from his father's account, thus potentially committing an offense under Section 420 of the IPC.

The judgment also addressed the issue of reviewing the Trial Magistrate's order. The Revisional Court had remanded the matter back to the Trial Court to reconsider the documents, but the Trial Magistrate, citing legal precedent, refused to review its initial order. The court upheld the Trial Magistrate's decision, emphasizing that the accused has no right to present a defense before the issuance of summons. The court also highlighted the delay in the proceedings, directing the Trial Court to decide the criminal complaint within six months.

Furthermore, the judgment referenced relevant legal precedents, including the Supreme Court's decision in the case of Adalat Prasad, to support its findings. The court dismissed the application under Section 482 of Cr.P.C. and imposed a cost on the applicant for filing the application. The applicant was directed to deposit the specified amount within a week, failing which further action would be taken. The Trial Court was instructed to expedite the resolution of the criminal complaint, emphasizing the need for timely adjudication in such matters.