How to prove dishonour of cheque in case of 'yourself cheque'?
crossed cheque to the bank asking the bank to deduct money
from his account into bank’s own account for the purpose of
buying banking products like drafts, pay orders, fixed deposit
receipts or for depositing money into other accounts held by
him like recurring deposits and loan accounts.
In the present case, the drawee is bank as the cheques were
drawn by mentioning ‘Yourself’. As per clause (b) to proviso of Section 138
of the Act, the demand for the payment or dishonour of cheque was to be
made either by payee or the ‘holder in due course’ of the cheque. As per
submissions made by learned counsel for the petitioner, complainant respondent
No.1 was neither the payee nor the 'holder in due course' of the
cheques in dispute as the cheques were not issued in favour of the
complainant. It is also the argument of learned counsel for the petitioner
that the provisions of Sections 118 and 139 of the Act are not applicable as
the complainant is neither 'payee' nor the ‘holder in due course’ and
dishonour of cheques in such situation does not amount to penal offence
under Section 138 of the Act. The stand of respondent No.1 is that since
the cheques in dispute were accompanied by RTGS forms with a clearcut
instruction to transfer the amount of cheques in dispute in the account of
respondent No.1, therefore, the provisions of Section 138 of the Act are
attracted. Learned counsel for respondent No.1 has also brought to the
notice of this Court the photocopies of the cheques, which shows that there
was a clear cut instruction on the back side of the cheque that the amount
was to be transferred to the account of respondent No.1. The name of the
transferee was clearly mentioned on cheque. In the present case, undisputedly the Bank is holder of the
cheques but as per endorsement as well as the fact that cheques were
accompanied by RTGS forms for transfer of the amount in the account of
respondent No.1, it is respondent No.1 only who was to collect the amount.
Respondent No.1 is the payee in an indirect manner as the amount was to
be transferred in its account through cheques as per clearcut instructions
given in RTGS form and, therefore, it cannot be said that complainant was
having no authority to file the complaint. A mere holder or endorsee
without consideration cannot come within the purview of word ‘another
person’. Accordingly, respondent No.1-complainant can safely be said to
be payee or holder or holder in due course. The bank in the present case
is merely a holder but without consideration the endorsement was meant
for respondent No.1 to collect the amount. Accordingly, respondent No. 1
became payee of the cheques and on bouncing of same, the complaint
was filed by him. This view has also been taken by Andhra Pradesh High
Court in Nageshwara Rao's case(supra), wherein, it was held as under:-
“At the first sight, the submission is quite feasible. But there is
a twist in this case. The complainant is not a mere holder. It is
true that he is the endorsee without consideration. But the
endorsement here is “to collect”. That endorsement clothes
the complainant with the authority to issue notice and realise
the amount by filing a civil suit and also a criminal complaint.
Therefore, the ratio of the Bench judgment cannot squarely be
applied to the facts of this case. In pursuance of the authority
given to the complainant “to collect”, he issued the notice and
the cheques were given in the name of complainant.
Therefore, he became the payee under the cheques. When
the cheques bounced, certainly he can file the complaint to
enforce his duty “to collect” the amount under the instrument.
Such a step is taken by the complainant in this case.
Therefore, it cannot be said that the complainant has no
authority to file the complaint. I hold accordingly.”
Moreover, the offence under Section 138 of the Act is technical
in nature and defence to be taken by the accused is inbuilt as the cheques
were given without consideration but the onus of proving the defence is
upon the accused alone as provided under Section 106 of the Evidence
Act. In a case under Section 138 of the Act, the trial is conducted in a
summary manner and the evidence is given by the complainant by way of
an affidavit, which is sufficient to prove the offence. The evidence is not
required to be given again in terms of Section 145 (1) of the Act and same
has to be read during trial. The witnesses or the complainant can be
recalled only when accused makes an application and only in
circumstances when some reasonable ground is there to recall the
witnesses. The offence under Section 138 of the Act is not like the offence
under IPC. The offence under Section 138 of the Act is an offence of
personal nature of the complainant and it is an offence, which is made
under Negotiable Instrument Act so that the trust in commercial
transactions is not destroyed because of dishonour of cheque. When it is
within the knowledge of the accused as to why he is not to face the trial
under Section 138 of the Act, he is to take the plea of defence and burden
cannot be shifted upon the complainant. No presumption, therefore, can
be drawn that even if the accused has failed to bring out his defence, he is
still to be considered as an innocent. In case the accused has a defence
against dishonour of cheque in dispute, it is he alone who knows the
defence and is responsible to spell it out to the Court and to prove it.
Once the complainant has brought forward his case by giving his affidavit
about issuance of cheques, dishonour of cheques, issuance of demand
notice etc., he can be cross-examined only if the accused makes an
application to the Court as to on what point he wants to cross-examine the
witness.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M-37492 of 2012
Nitin Chadha
Versus
M/s Swastik Vegetable Products Pvt. Ltd. & Anr.
DATE OF DECISION: 10.2.2015
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Citation; 2015 ALLMR(CRI)Journal 623
https://www.lawweb.in/2016/01/how-to-prove-dishonour-of-cheque-in.html
