2022 (11) TMI 1083 - HC - Indian Laws

Dishonor of Cheque - failure to file a cheque return memo before the trial Court - whether on the basis of cheque return memo the summoning order cannot be passed? - HELD THAT - The section 138 of the NI Act does not mandate any particular form of cheque return memo which is nothing but a mere information given by the Banker of the due holder of a cheque that the cheque has been returned as unpaid. If the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque return memo as invalid or illegal. The cheque return memo is not a document which is not required to be covered under section 4 of the Bankers Book (Evidence) Act, 1891. If there is any infirmity in the cheque return memo, it does not render entire trial under section 138 of the NI Act as nullity. The perusal of the alleged cheque return memo which is under challenge reflects that the cheque bearing no. 000192 dated 15.04.2019 amounting to Rs.47,53,519/- could not be encashed due to the account blocked . If it is presumed that there is any irregularity or illegality in the format of the said cheque return memo then it can be addressed during the course of trial. The petitioner has not disputed the issuance of cheque under his signature and the dishonour of the cheque by the concerned Banker. There is no infirmity or illegality in the impugned order. The concerned Court has not committed any illegality while relying on the said cheque return memo dated 04.07.2019 before issuance of the summons against the accused no. 1 to 3 which also includes the petitioner as accused no. 2. The decision delivered by the Himachal Pradesh High Court does not provide any help to the petitioner. Petition dismissed.

Summary

Issues Involved:
1. Quashing of criminal complaint under Section 138 of the Negotiable Instruments Act, 1881.
2. Admissibility and validity of the cheque return memo.
3. Application of judicial mind by the trial court in issuing the summoning order.

Issue-wise Detailed Analysis:

1. Quashing of Criminal Complaint under Section 138 of the Negotiable Instruments Act, 1881:
The petitioner sought to quash the criminal complaint titled "Amrit Pal Singh Bedi V International Trenching Pvt. Ltd. & Ors." and the summoning order dated 29.08.2019. The complaint was filed under Section 138 of the NI Act, alleging that the petitioner and other accused failed to make a timely payment of Rs. 47,53,519/- to the respondent. The trial court took cognizance of the offence and issued summons against the accused nos. 1 to 3. The petitioner argued that the complaint and the summoning order were not maintainable due to the absence of an original cheque return memo with a bank seal, making the document inadmissible.

2. Admissibility and Validity of the Cheque Return Memo:
The petitioner contended that the cheque return memo submitted was not admissible as it lacked the bank's official seal and was merely an internal document. The court examined Section 146 of the NI Act, which presumes the fact of dishonour unless disproved. It noted that neither Section 138 nor Section 146 prescribes a specific form for the cheque return memo. The court held that the absence of a bank seal does not render the memo invalid or illegal. The cheque return memo is a mere information document and does not need to be covered under Section 4 of the Bankers Book (Evidence) Act, 1891. Any irregularities in the memo can be addressed during the trial.

3. Application of Judicial Mind by the Trial Court in Issuing the Summoning Order:
The petitioner argued that the trial court failed to scrutinize the material on record and applied a mechanical mind in issuing the summoning order. The court referred to the Supreme Court's judgment in "A. C. Narayanan Vs. State of Maharashtra & Anr." which allows the Magistrate to issue process based on the complaint, supporting documents, and the complainant's affidavit. The trial court found prima facie sufficient grounds for proceeding against accused nos. 1 to 3, relying on the verification in the form of an affidavit. The court concluded that there was no infirmity or illegality in the trial court's order, and the petitioner's grounds lacked factual and legal basis.

Conclusion:
The court dismissed the petition, finding no merit in the arguments presented by the petitioner. It directed the trial court to expedite the trial of the complaint and sent a copy of the order for information and compliance. The decision emphasizes the sufficiency of a cheque return memo without a bank seal and upholds the trial court's discretion in issuing summons based on the complainant's affidavit and supporting documents.