Royal Bank of Scotland N.V. v. Dalpat Rai Arora

1. The present petition has been filed by the Petitioner for quashing of the impugned order dated 20th May, 20lI summoning the Petitioner namely VI/S ABN AMRO BANK now known as IWS Royal bank of Scotland N.V. for an offence under Section 138 of Negotiable Instrument Act (in short NI Act) in a criminal complaint titled Dalpat Rai Arora V/s ABN AMRO BANK N.V. & Others.

2. Briefly, the facts of the case are that the Respondent was the owner of property bearing plot number 748, Pocket B-3, Sector 29, Rohini, Delhi. He CRL.M.C. 3084/2010 2011:DHC:10618:r_ entered into a transaction for sale of the said property in favour of Shri Shashi Kapoor S/o Shri Harish Kapoor for a consideration in the sum of Rs. 6,00,000/- which was paid to the Respondent vide alleged bankers cheque bearing number 214229 dated 15ft January, 2010 drawn on the petitioner bank.

3. When the Respondent presented the cheque in his bank it was returned unpaid with remarks "Funds Insufficient". On 2nd February,2010 the Respondents sent a notice to the Petitioner under section 138 read with I42 of the NI Act. The Petitioner responded to the said notice with a reply on 18th February, 2010 informing the respondent that the allegations and claims made in the notice against the Petitioners were incorrect, false, malicious and vehemently denied unless expressly agreed and no such Banker's cheque was ever.issued by it. It was further stated that the banker's cheque as alleged in the notice appeared to be forged and that the Petitioner was not liable to make any payment under such a forged instrument.

4. Thereafter the Respondent filed a criminal complaint under section 138 of Negotiable Instrument Act before the learned trial court against the i 'l ? Petitioner. The learned Metropolitan Magishate on 20th Muy, 2010 issued the impugned order summoning the Petitioner.

5. Despite service of notice of the present petition to the respondent none has appeared on behalf of the Respondent.

6. Learned counsel for the Petitioner contends that the learned Metropolitan Magistrate has completely ignored the fact that before issuing summons the learned trial court was required to satisff itself whether prima facie ingredients of the offence are made out against the Petitioner or not. That the instrument in question is forged on the face of it as the stamp below the authorized signatory is erased. After receipt of the notice the Petitioners enquired into the matter and found that the instrument was a part of cheque series number 2l42ll to 214230 which was issued to one Shri Shashi Kapoor on 12th February, 2009 for his who was holder of a savings bank account number L21939[8]. A complaint in this regard was made to the SHO P.S. Barakhamba Road on the 22nd February,2010. He further states that the learned Magistrate failed to observe the fact that no notice was issued to Shri Shashi Kapoor even after the bank intimated to the Respondent that the said cheque given by Shri Shashi Kapoor was forged and fabricated. Even in the ( a complaint filed by the Respondent Shri Shashi Kapoor was not made apaty even though he was the true drawer of the cheque, with whom the Respondent had entered into a contract.

7. I have heard the learned counsel. A bare perusal of copy of cheque Ex. CWl/l shows that same is not a valid document as material part of it was erased.

8. Section 138 ofNegotiable Instrument Act, 1881 reads as under- "Section 138- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for ["a term which may extend to two year"], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, f"within thirry days"] of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and t v

9. the

(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability]"- On a reading of the section specifically clause 138(c) it is clear that liability or debt has to be borne by the drawer of the cheque. In no way would the bank come within the ambit of the section as it owes no legal liability to the Respondent. Further the notice issued on behalf of the Respondent itself states that the Respondent is a retired officer of a Nationalized Bank and was thus well aware that a Banker's cheque cannot be dishonoured on the ground of "Funds Insufficienf' as the Bank's issue Banker's cheque only after securing full amount of the cheque. Surprisingly though stating fraud and cheating has been done to the Respondent, neither any notice is sent to Shri Shashi Kapoor nor has he been arrayed as an accused in the complaint.

10. The impugled order dated 20fr May, accordingly disposed of.

AUGUST T[9],2OII tvn' 20LI is set aside. Petition is lMre- ' MIIKTA GIIPTA, J. co[1].\t t?oul,r- --.-€"9 1o I $-8s * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C.308412010 ROYAL BANK OF SCOTOLAND N.V...... PCtitiONCT Through Mr'. Punit K. Bhalla, Adv.

VERSUS

JUSTICE MUKTA GUPTA ORDER % 1L.0s.2012 Cr[1].M.A. 5908/20 1 2 (conection) By this application the Petitioner seeks correction of the order dated 19th August, 2011 passed by this Court wherein inadvertently the date of the impugned order has been mentioned as 20th Muy, 20Il instead of 20th Muy,

2010. In the I't and 10th paragraph of the order dated 19th August, 2011 passed by this Court, the date of irnpugned order be read as 20th Muy, 2010 instead of 20th Muy, 201I. Application is disposed of. Order dasti. hulW -f>q l/ MUKTA GUPTA, J MAY 11'2012 'ga'