Kamla Rani vs Vijay Kumar

K.C. Gupta, J.—This appeal has been directed by Kamla Rani against order dated 1.2.1995 passed by the Chief Judicial Magistrate, Faridkot, whereby her complaint u/s 138 of the Negotiable Instruments Act, 1881 was dismissed and the respondent was discharged.

Briefly stated, the facts are that Smt. Kamla Rani instituted a suit for dissolution of the firm known as M/s. Sajjan Filling Station. However, on the intervention of the respectables, compromise took place between the appellant and the respondent in the month of October 1993 and the respondent agreed to pay Rs. 4,60,000/- in full and final settlement of the claim of the appellant in the firm. In view of the compromise, the appellant agreed to withdraw the suit.

In part performance of that compromise the respondent issued cheque dated 20.11.1993 for Rs. 2,10,000/- in her favour. She presented that cheque in Punjab National Bank, Kotkapura, for clearance but she received intimation from her bankers on 10.12.1993 that the cheque was dishonoured as there was insufficient amount in the account of the respondent to clear that cheque. Upon the receipt of the cheque, the appellant gave notice on 27.12.1993 but inspite of receipt of that notice, the respondent did not pay the amount. Hence, the complaint was filed.

In order to prove the allegations, the appellant, in her preliminary evidence, examined herself as PW-1, Vijay Kataria, Clerk, Punjab National Bank as PW-2 and Subhash Satia, Clerk, Punjab and Sind Bank as PW-3.

After recording preliminary evidence, the respondent was summoned u/s 138 of the Negotiable Instrument Act, 1881 (for short "the Act") by the Chief Judicial Magistrate, Faridkot.

In the presence of the respondent, the appellant examined herself as PW-3, Vijay Kataria, Clerk, Punjab National Bank as PW-2 and Subhash Satia, Clerk, Punjab and Sind Bank as PW-3.

After hearing counsel for the parties, learned Chief Judicial Magistrate, vide his order dated 1.2.1995, dismissed the complaint and discharged the respondent u/s 138 of the Act as according to him there was no evidence that the cheque was issued for the discharge, in whole or part, any debt or other liability.

Aggrieved by the said order, the complainant has filed the present appeal.

I have heard Shri Rajiv Vij, Advocate, counsel for the appellant, Shri Davinder Kaushik, Advocate, counsel for the respondents and carefully gone through the record.

The appellant had filed a complaint u/s 138 of the Act against Vijay Kumar, respondent, on the allegation that she had instituted a suit for dissolution of the firm M/s. Sajjan Filling Station in which she had interest as partner and for rendition of account against Vijay Kumar, respondent and one Rajinder Kumar, in which, at the intervention of the respectables, compromise took place in October 1993 and the respondent agreed to pay Rs. 4,60,000/- in full and final settlement of the claim and in view of the compromise, she promised to withdraw the suit. It is further said that in the part performances of the agreement, the respondent issued cheque dated 20.11.1993 for Rs. 2,10,000/- in her favour, which on presentation, was dishonoured on account of insufficient funds and thus, after giving notice to the respondent on 27.12.1993, she filed the complaint. u/s 139 of the Act, there is a presumption that 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. There is no evidence that the cheque was time barred or was not legally enforceable. No suggestion was put to the appellant while she appeared as witness that the cheque was not legally enforceable or it was not issued for any debt or other liability. The authority Sunil Behl v. Berlina Construction 1994 (2) C C C 164 (P&H) cited by learned counsel for the appellant is not applicable to the facts of the present case because in the said case, it was held that it was sufficient compliance if it was stated that the accused owed a sum to the complainant on account of loan and salary. In the present case, the appellant had clearly stated in the complaint that she had interest in the firm M/s. Sajjan Filling Station and had filed a suit for dissolution of the firm as well as rendition of account against the respondent and one Rajinder Kumar in which compromise took place and the respondent had agreed to pay Rs. 4,60,000/- to her in full and final settlement of the claim and in part performance he had issued a cheque of Rs. 2,10,000/- on 20.11.1993 and she had promised to withdraw that suit and that cheque was subsequently dishonoured. Thus, according to the allegation in the complaint, the cheque was issued to discharge a debt or liability which the respondent owed to the appellant. It has been observed by the Bombay High Court in Ganesh Sukhlal Joshi v. M.A. Bharati and Anr. 1996 (3) Crimes 402 that there is a presumption u/s 139 in favour of holder of a cheque that it was issued in discharge of whole or in part of any debt or other liability. The accused is required to dis-lodge the presumption but no evidence had been led by the accused to rebut that presumption. In such circumstances, the trial Court was not right to hold that it has not been proved that the cheque had been issued for the discharge in whole or part of any debt or other liability.

Counsel for the respondent also contended that since order of discharge was passed, so, the appeal is not maintainable. In my opinion, the contention of learned counsel is not tenable. Since it was triable as a summon case, so, the order of discharge passed in a summons case shall be treated as a case of acquittal. Therefore, the appeal is maintainable.

Hence, in view of the discussion above, the appeal is allowed and the order of the Chief Judicial Magistrate, Faridkot, dated 1.2.1995, being illegal, is set-aside. The complaint is remitted to the Court of Chief Judicial Magistrate for further trial in accordance with law. The parties, through their counsel, are directed to appear in his Court on 24.3.2003.