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TMI Blog2000 (3) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... dishonoured with impunity and the poor victim was left with no option except to pay a heavy Court fee and file a summary suit, thereby adding injury to insult. Then came stage 2 wherein all sorts of involved and dishonest defences were pleaded and the contention was raised that triable issues arise as a result of which the proceeding was transferred to the list of contested suits and if the proceeding was ultimately disposed of during the lifetime of the plaintiff, it was considered merciful. There was a serious fall-out on the economic repercussions but more importantly, on the aspect of business integrity and it was for this reason that the Act was amended and Section 138 was introduced. The Courts have defined this section as a no non-sense provision and the scheme of the law is that the Criminal Court is required to do only a summary investigation and if it is disclosed that the cheque was issued, it was dishonoured and the accused has failed to make payment within the stipulated period pursuant to a notice of demand, a conviction is inevitable. Unfortunately, the Criminal Courts have permitted themselves to be drawn into all sorts of specious debates as a result of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque in question was for an amount of Rs. 16,250/- whereas the complainant has contended that the outstandings to him was of the order of Rs. 18,500/-. The Court came to the conclusion that the order of conviction against the accused was unjustified. Strangely enough, the Court has not addressed itself to the all important question namely, the fact that there is no dispute about the cheque having been issued by the accused, the fact that the face value of the cheque namely Rs. 16,250/- has not been paid up despite the dishonour and a notice calling upon the accused to pay up the amount and as often happens, the appeal Court was swayed by several arguments that were obliterating the main issue namely, the undisputed liability and in the process, overlooked the basics. The present appeal has been directed against the order of the Sessions Court dated 13-9-1994. We are now in the year 2000 and the criminal proceedings instituted on 4-11-1991 are just about to be disposed of. The main contention raised on behalf of the appellant is that at no stage has the accused denied the fact that goods had been purchased from the complainant and that the cheque was issued against the outstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the mischief as contemplated under Section 138. There is a presumption that when a cheque is issued, that the amount is payable and no Criminal Court is required to embark upon any enquiry that goes behind the act of issuance of the cheque. If the drawer contends that there were certain special reasons whereby a cheque was issued and that the cheque was not intended to be encashed or honoured, the onus of establishing this shifts squarely to the accused. I need to add here that in the absence of cogent and conclusive defence evidence, no Court is required to either even entertain or uphold any such plea, the reason being that a cheque is not intended to be used for any such purposes and if there are special reasons for what has happened, then the law will take cognizance of them. As far as the aspect of enforceable claim or debt is concerned again, the law proceeds on the basis of certain well-defined presumptions and the issuance of the cheque is adequate proof of the fact that the debt or claim is enforceable and is liable to be discharged and if there is evidence to the contrary, then it is for the defence to place such evidence before the Court. The duty of the prosecut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e me that the cheque does not represent the debt as outstanding but to my mind, this argument is a super technicality and is liable to be downright rejected because what the law takes cognizance of is the question as to whether the cheque covers the whole or part of an outstanding debt. If the cheque is issued for an amount higher or larger, then the complexion of the case may be altered but this is not such an instance. In this regard, the appellant's learned Counsel relied on a decision of the Punjab and Haryana High Court in 1992 Cri. L.J 1044 (P and H), wherein precisely this aspect of the case was gone into and the Court has in terms held that the date of issue of the cheque is immaterial for purposes of constituting the offence. With regard to the aspect of revalidation and multiple signatures, the appellant's learned Advocate has drawn my attention to a decision of the Allahabad High Court in Bab-ban (deceased) by L.Rs v. Shiv Nath . AIR 1986 All. 185., wherein the Court held that multiple signatures as long as they are all proved to be genuine does not in any way affect the validity of the document. One of the submissions canvassed before me as also before the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to pay up a sum of Rs. 18,500/- whereas, the subject-matter of the cheque is Rs. 16,250/-. The learned Judge has held that the divergence of the two figures which do not generally tally is fatal to the prosecution. I fail to see the logic behind this reasoning insofar as some time had elapsed particularly since this was an old liability and if the outstanding debt was higher than the face value of the cheque, there would be no irregularity in the notice which was for an amount which included the face value of the cheque. It has been brought to the notice of this Court that one of the reasons for the abnormal delay in the prosecutions in this category of cases is because the Court processes, be they summons or warrants are required to be executed through the police machinery. The learned Advocate appearing for the complainant stated at the bar that the police show very little inclination as far as executing these processes are concerned or that they are downright in collusion with the accused as a result of which the entire effort is frustrated. From the number of cases that are pending and the order sheets, it is very clear that its grievance is well-founded. The amounts involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of recovery of the fine amount whereas if the appeal Court had taken the precaution of insisting on the deposit of the amount, at least that money would have been secured. This is a very valid aspect of the law which the Appellate Courts must bear in mind. Viewed at from any angle, this is not a case in which the appeal Court ought to have interfered with the decision of the Trial Court. The appeal accordingly succeeds. The order of the lower Court is set aside and the order of the Trial Court is restored. The appeal to stand disposed of with the aforesaid directions. Since the accused has been convicted, a copy of this order to be transmitted to the Trial Court by fax and the same to be furnished also to the learned Advocates. The Trial Court to issue a non-bailable warrant against the accused, secure his presence and give effect to the order of conviction. In the course of the hearing of this appeal, a statement was made at the Bar that the accused has died. No death certificate has been produced and consequently, this Court cannot take cognizance of that statement and the Court has accordingly directed that the sentence imposed on the accused be carried out. More importantly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is very limited and it is therefore, literally for ulterior purposes that the accused who is the person sitting with the money and the one who has refused to part with it, gets the maximum mileage through protracted litigation. This Court therefore considers it necessary to lay down certain broad guidelines for the conduct of this class of cases. Firstly, the Court will ensure if necessary by having resort to the coercive steps provided for under the Criminal Procedure Code that the appearance of the accused is secured without any undue delay. Necessary steps shall then be taken to ensure the presence of the accused when required and it will be desirable that the learned Magistrate should record the plea of the accused on the first date when the accused appears or on the very next date of hearing. The evidence required in these cases is again minimal and the complainants shall be required to keep the evidence ready so that the recording can commence on the next date of hearing. The Presiding Officer shall also take special care to ensure that long adjournments are not granted, that time is not wasted in irrelevant cross-examination, that the arguments are confined to the aspects ..... X X X X Extracts X X X X X X X X Extracts X X X X
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