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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Rekha Prasad
  • Harendra Narain Sinha
Judges
  • Mridula Mishra, J.
Acts
  • Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act. Facts
  • Section 420 of the Indian Penal Code or Section 138 of the Negotiable Instrument Act. Post
  • Section 420 of the Indian Penal Code and 138 of the Negotiable Instrument Act.4.
  • Sections 138 and 139 of the Negotiable Instrument Act
  • Section 138 of the Negotiable Instrument Act
  • Section 139 of the Negotiable Instrument Act
  • Rule 63 of the Bihar Electricity Rules,
  • Section 420 of the Indian Penal Code,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Rekha Prasad
  • Harendra Narain Sinha
Judges
  • Mridula Mishra, J.
Acts
  • Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act. Facts
  • Section 420 of the Indian Penal Code or Section 138 of the Negotiable Instrument Act. Post
  • Section 420 of the Indian Penal Code and 138 of the Negotiable Instrument Act.4.
  • Sections 138 and 139 of the Negotiable Instrument Act
  • Section 138 of the Negotiable Instrument Act
  • Section 139 of the Negotiable Instrument Act
  • Rule 63 of the Bihar Electricity Rules,
  • Section 420 of the Indian Penal Code,
See more information ...
Smart Summary

Expert Legal Summary of the Opinion

Factual and Procedural Background

The petitioners are Chanakya Picture Palace, Om Narayan Sharma (Managing Partner) and Surendra Kumar (Manager). They filed an application seeking quashing of Complaint Case No. 204(C) of 2003 and the cognizance taken by the court on 30.1.2003 under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act.

The Bihar State Electricity Board (the “Board”), through its Assistant Electrical Engineer (Revenue), alleged that an HT electric connection was given to Chanakya Picture Palace in 1982 on the assurance that the Cinema would pay electricity charges as per tariff notifications and agreement. The Board supplied electricity from August 1982 to November 1996, and alleged the petitioners intentionally failed to pay energy and allied charges, resulting in a certificate amount of Rs. 14,96,905.96 (plus interest) due up to November 1996. After non-payment, the Board disconnected the supply and initiated a certificate proceeding.

While the certificate proceeding was pending, Surendra Kumar (petitioner no. 3) filed Writ C.W.J.C. No. 5512 of 2002 in the High Court admitting the certificate amount and securing an order dated 23.5.2002 permitting deposit of Rs. 4 lakhs by 30.5.2002 and restoration of supply within one week thereafter; the balance was to be paid in six equal monthly post-dated cheques, with consequences for non-payment spelled out in the order.

The petitioners deposited Rs. 4 lakhs as directed, but on inspection the Board discovered discrepancies and required completion of certain works and production of a certificate from the Electric Inspector (per Rule 63 of the Bihar Electricity Rules) before restoration. The petitioners did not produce the Electric Inspector's certificate at that time. Post-dated cheques handed over in compliance with the High Court order were presented and returned with the banker’s remark “Insufficient fund.” Subsequent cheques were similarly returned. The Board sent legal notice and then filed the criminal complaint for alleged offences under Section 420 IPC and Section 138 NI Act. The petitioners applied to quash those proceedings.

Legal Issues Presented

  1. Whether the Complaint Case No. 204(C) of 2003 and the order dated 30.1.2003 (taking cognizance under Section 420 IPC and Section 138 NI Act) should be quashed.
  2. Whether a prima facie case is made out against the petitioners under Section 138 of the Negotiable Instruments Act, taking into account the petitioners' contention that stoppage instructions were given to their bank.
  3. Whether a prima facie case is made out against the petitioners under Section 420 of the Indian Penal Code for alleged cheating by issuing post-dated cheques despite insufficient funds.
  4. Whether petitioner nos. 2 and 3 are liable under Section 139 of the Negotiable Instruments Act (presumption as to consideration and issuance), given the undertaking in the writ petition and the cheques issued.

Arguments of the Parties

Petitioners' Arguments

  • No prima facie case is made out under Section 420 IPC or Section 138 NI Act.
  • The post-dated cheques were furnished in compliance with the High Court order dated 23.5.2002; the condition precedent for the bank to honour those cheques was restoration of electric connection within one week after deposit of Rs. 4 lakhs.
  • Because the electric connection was not restored, the petitioners instructed their banker not to honour the post-dated cheques; the non-honour was due to stoppage instruction rather than insufficiency of funds.
  • The Board was liable for contempt of the High Court order for not restoring supply; consequently, the petitioners were not obliged to effect further payment and could not be held criminally liable.
  • Petitioner nos. 2 and 3 (as to some petitioners) contend they did not issue the cheques and therefore cannot be held liable for dishonour.

Respondent (Bihar State Electricity Board) Arguments

  • The electric connection was not restored after deposit because, under Rule 63 of the Bihar Electricity Rules, a certificate from the Electric Inspector is mandatory where connection has been disconnected for more than a year; that requirement is for safety and mandated by the Electricity Act and rules.
  • The cheques were returned by the bank on account of insufficient funds in the petitioners’ account; they were not returned merely because of stoppage instructions.
  • The complainant relied on the Supreme Court decision in Goa Plast (P) Ltd. v. Chico Ursula D'Souza (2004 P.L.J.R (1) 248) to assert that once a cheque is issued a presumption under Section 139 follows, and instructions to stop payment do not preclude an action under Section 138.
  • Petitioner no. 3 had filed the writ and given an undertaking to clear the certificate dues, so his complicity cannot be ruled out; petitioner nos. 2 and 3 are liable under Section 139 NI Act and a prima facie case under Section 138 is made out against all petitioners.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Goa Plast (P) Ltd. v. Chico Ursula D'Souza [2004 P.L.J.R (1) 248] That issuance of a cheque attracts the presumption under Section 139 NI Act; an instruction by the drawer to the bank to stop payment does not, by itself, preclude an action under Section 138 NI Act. The Board relied on this decision in support of the proposition that stoppage instructions do not negate a prima facie offence under Section 138; the Court accepted the relevant principle in concluding that even where stoppage instructions were alleged, the ingredients of a prima facie offence under Section 138 were present.

Court's Reasoning and Analysis

The court reviewed the writ order dated 23.5.2002 (C.W.J.C. No. 5512 of 2002), the subsequent deposit of Rs. 4 lakhs by the petitioners, the Board’s inspection report revealing safety-related discrepancies, the Board’s requirement for a certificate from the Electric Inspector under Rule 63 of the Bihar Electricity Rules, and the series of post-dated cheques that were presented and returned by the petitioners' bank.

The Court identified the statutory objects of Sections 138 and 139 of the Negotiable Instruments Act — namely, to ensure that a cheque issued for payment of an admitted liability is honoured by the drawer. The court reasoned that where the liability is admitted, even if the drawer issues instructions to the banker to stop payment, the ingredient necessary for making out a prima facie offence under Section 138 is still present. The court therefore rejected the petitioners’ argument that a stoppage instruction automatically negated the presumption or immunity from prosecution under Section 138.

With respect to Section 420 IPC, the Board alleged that the petitioners cheated by issuing post-dated cheques while maintaining insufficient funds in their account. The court found that this allegation, coupled with the returned cheques bearing the banker’s remark “Insufficient fund,” supported a prima facie case under Section 420 as well.

The petitioners produced a certificate of the Electric Inspector dated 21.10.2002; the court observed that this certificate indicated the petitioners had not been able to produce the certificate before the Board in June 2002, supporting the Board’s position that the failure to restore connection at that time was not due to laches on the Board's part. The Court treated the Electric Inspector’s requirement under Rule 63 as a legitimate regulatory condition that justified the Board's actions regarding restoration.

Weighing these facts and submissions, the court concluded that the petitioners had not demonstrated that the impugned criminal proceedings lacked any prima facie basis and therefore were not entitled to have those proceedings quashed at the prima facie stage.

Holding and Implications

DISMISSED.

The court dismissed the petition to quash the complaint proceedings (Complaint Case No. 204(C) of 2003) and the order taking cognizance under Section 420 IPC and Section 138 NI Act. The direct effect is that the criminal complaint and cognizance remain in place and the criminal process can continue against the petitioners. The opinion does not state that any new legal precedent was created; it applied existing statutory principles under Sections 138 and 139 NI Act and the court found a prima facie case under Section 420 IPC as well.

End of summary based solely on the provided opinion.

Show full summary ...

    M/S Chanakya Picture Palace & Ors. v. State Of Bihar & Anr. Opposite Parties.

    1. Chanakya Picture Palace, Exhibition Road, Patna, Om Narayan Sharma Managing Partner of Chanakya Picture Palace and Surendra Kumar, Manager of Chanakya Picture Palace are the petitioners in this application.

    2. Petitioners have filed this application for quashing the entire proceeding of Complaint Case No. 204(C) of 2003 including the order dated 30.1.2003 by which cognizance has been taken under Section 420 of the Indian Penal Code and Section 138 of the Negotiable Instrument Act. Facts giving rise to the present application are that the opposite party no. 2, the Bihar State Electricity Board, (hereinafter referred to as the “Board”) through its Assistant Electrical Engineer (Revenue) filed a Complaint Case No. 204(C) of 2003 against the petitioners. Allegations in the complaint petition was that the Board gave H.T connection to Chanakya Picture Palace in the year 1982 on the assurance that the Chanakya Picture Palace will pay the charges as per the various tariff notifications and the agreement for future energy supply. The complainant supplied the electricity energy under the H.T tariff since August, 1982 to November, 1996, but the accused persons intentionally and knowingly neglected to pay the energy charges and other charges legally payable. Apart from the other dues a sum of Rs. 14,96,905.96 paise besides interest became due for the period upto November, 1996. The said amount was demanded from the accused persons, but the Same was not paid resulting into disconnection of electricity line and forcing the Board to file the certificate case against the accused petitioners. During the pendency of the certificate case Surendra Kumar who is petitioner no. 3 in this application filed a writ application bearing C.W.J.C No. 5512 of 2002 in the High Court. In the writ application he admitted the entire certificate amount to be payable. The said writ application was disposed of by order dated 23.5.2002 wherein it was observed as follows:—

    “Having considered the submission made by the learned counsel for the parties this much is obvious that a certificate case was initiated against the petitioner for non-payment of electric duce The Certificate Officer passed order, Annexure-4. In the writ petition the order, Annexure-4, has not been challenged. Learned counsel for the respondents, no doubt, says that order, Annexure-4, is bad in law and the Board has filed review application before the Certificate Officer. Since the petitioner admits to pay the entire certificate amount, I do not find any reason to allow the parties to proceed with the litigation. Therefore, petitioner is permitted to deposit Rs. 4 lac by 30th May, 2002. In case deposit is made the respondent-Board shall restore electric connection to the premises of Chanakya Picture Palace within a period of one week thereafter. The petitioner shall pay the rest of the amount in six equal monthly instalments which will start from June, 2002. He will deposit the first instalment by 30th June, 2002 and shall go on depositing the same month to month. The deposit will be made by post dated cheque. In case the petitioner fails to deposit the instalment as indicated above, the Board shall have liberty to disconnect the electric line of the premises. It is, however, made clear that the petitioner shall go on paying the current bill of the electricity consumed. The petitioner is at liberty to approach the respondent-Board for correction of the bill but that will not in any way affect the order of this Court in respect of deposit of the amount.”

    3. After the orders passed in C.W.J.C No. 5512 of 2002 a sum of Rs. 4 lacs was deposited as per the direction of this Court, whereafter inspection was held by the Board of the premises of the Cinema Hall and a lot of discrepancies were found which could have resulted into serious consequences if the electricity line was given without removal of the same. The Board intimated to the petitioners vide letter dated 5.6.2002 to complete the work and report about the same so that the power supply could be restored immediately. Even after reminder, the certificate of the Electric Inspector, Bihar, Patna was not produced by Chanakya Picture Palace as such the electric connection could not be restored. A post dated cheque bearing No. 095280 for Rs. 182817.70 paise, which was handed over to the “Board” was presented before the Bank but the same was returned by the Banker of petitioners without encashment with a remarks “Insufficient fund” and subsequently five cheques bearing No. 095281 dated 30.7.2002, No. 095282 dated 30.8.2002, No. 095283 dated 30.9.2002, No. 095284 dated 30.11.2002 and Cheque No. 095285 dated 30.11.2002 were deposited on 5.12.2002, but all were returned with remarks “Insufficient fund”. A legal notice was sent to the petitioners, but the amount was not paid and thereafter a complaint petition was filed by the Board for the alleged offence under Section 420 of the Indian Penal Code and 138 of the Negotiable Instrument Act.

    4. Counsel appearing for the petitioners submits that no prima facie case is made out against the petitioners either under Section 420 of the Indian Penal Code or Section 138 of the Negotiable Instrument Act. Post dated cheques were handed over to the Board in compliance of the order dated 23.5.2002, passed by the High Court in C.W.J.C No. 5512 of 2002. The condition precedent of honouring the cheques was restoration of electric connection to the premises of Chanakya Picture Palace within a period of one week after deposit of Rs. 4 lacs. Since the electric connection has not been restored, therefore, they instructed their bankers not to honour the post dated cheques issued by them in favour of the Board. The fact is that the Board is liable for contempt of this Hon'ble Court's order and they cannot be held liable for commission of any offence. Since the Board has intentionally violated the order of the High Court as such payment of the amount which was agreed by the petitioners for payment in C.W.J.C No. 5512 of 2002 was not at all necessary even if the cheques were not honoured by the Bank no offence under Section 138 of the Negotiable Instrument Act is made out as it was not dishonoured for insufficiency of fund rather it was not honoured as this was direction to the banker that the cheques if presented should not be honoured.

    5. A counter affidavit has been filed by opposite party no. 2, the Bihar State Electricity Board, Annexures-A, B and C has been annexed with the counter affidavit in order to show that the electric connection was not restored even after Rs. 4 lacs was deposited because under Rule 63 of the Bihar Electricity Rules, it is mandatory that if any electric connection has been disconnected for more than a year then unless a certificate is issued by the Electric Inspector regarding the fitness for restoration of electricity connection, there cannot be any restoration of the electric connection. This requirement is laid down in the Electricity Act and rules for the purpose of safety of the consumer itself and its violation have a fatal result. It has also been submitted by the counsel appearing for the Board that the certificate amount being an admitted amount, the complainant was liable to realise the same from the petitioners. The cheques were not returned because there was instruction of the petitioners for non payment of the same rather the cheques have bounced on account of insufficient fund in the account of the petitioners. The counsel appearing for the Board has placed reliance on a recent decision of the Supreme Court in the case of Goa Plast (P) Ltd. v. Chico Ursula D'Souza. [2004 P.L.J.R (1) 248] in which it has been held by the Apex Court that once the cheque is issued by the drawer a presumption u/s. 139 must follow and merely because the drawer issues a notice to the drawee or to the Bank for stoppage of the payment it will not preclude an action u/s. 138 of the Act.

    6. Counsel for the petitioners has also stated that the petitioner nos. 2 and 3 have nothing to do with the issuance of cheques and as the cheques were not issued by them, they cannot be held to be liable if the cheque bounced for insufficiency of fund.

    7. The counsel appearing for the Board in his counter affidavit has controverted this statement of the counsel for the petitioners stating that so far as the petitioner no. 3 is concerned he had filed C.W.J.C No. 5512 of 2002 and given undertaking before this Court to clear the entire amount of certificate dues. The complicity of petitioner no. 3 in the entire matter cannot be ruled out. Petitioner nos. 2 and 3 both are liable under Section 139 of the Negotiable Instrument Act in the present case as such a prima facie case under Section 138 of the Negotiable Instrument Act is made out against all the petitioners.

    8. After going through the application, the counter affidavit and reply to the counter affidavit as well as the submissions made by the counsel for the petitioners and the opposite parties, I am of the view that the object behind Sections 138 and 139 of the Negotiable Instrument Act is that the cheque issued for payment of admitted liability the drawer must honour his liability. In case of admitted dues even if instruction is issued by the drawer to the banker that the cheques should not be honoured, the ingredient for making out a prima facie offence under Section 138 of the Negotiable Instrument Act is present and it cannot be said that the prima facie case under this section is not made out. Regarding Section 420 of the Indian Penal Code, it has been stated by the counsel for the Board that the petitioners have cheated the Board by keeping insufficient fund in their account and issuing post dated cheques in favour of the Board as such a prima facie case under Section 420 of the Indian Penal Code is also made out. Counsel for the petitioners has produced certificate of the Electric Inspector, Bihar, Patna dated 21.10.2002 From this certificate it is apparent that at the relevant time i.e in the month of June, 2002, the petitioners were not able to produce this certificate before the Board for restoration of electric connection in the premises. This certificate also goes to show that there was no laches on the part of the Board, if the electric connection was not restored to Chanakya Picture Palace.

    9. In the facts and circumstances of the case, the petitioners have not been able to make out a case in their favour for quashing of the impugned order. The application is dismissed.

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    Comments

    M/S Chanakya Picture Palace & Ors. v. State Of Bihar & Anr. Opposite Parties.
    (Apr 15, 2004)