Abdul Majeed Baba vs Mst. Naza

By the medium of this petition, filed under Section 561-A Cr. PC, the petitioner has sought indulgence of this Court in quashing the proceedings in complaint filed under Section 138 of Negotiable Instrument Act, pending before the learned Judicial Magistrate 1st Class, Tral.

A brief account of facts, in which the petition is stated to have been filed is:

(i) That the respondent has filed the complaint under Section 138 of Negotiable Instrument Act and the same is pending disposal before the Court of learned JMIC, Tral.

(ii) That the petitioner is aggrieved of the same reason being that the complainant in his complaint is on board contending that the petitioner herein is owing a huge amount of money to the respondent herein as the petitioner has taken the huge amount for providing land and on the other hand the respondent is contending that the petitioner is not repaying the amount owed by him to the respondent. The respondent is silent on the fact that the land against which the money was taken has been given to her or not and has not even provided the details of the transaction by virtue of which the complainant/respondent herein ad transferred or paid in cash the said amount to the petitioner. The complaint is completely based on false and frivolous grounds.

(iii) That the complainant had got one blank cheque pertaining to the petitioner's account by some means and thereafter filed the complaint for said cheque herself and has also put an amount of her own choices in the said cheque and got the same complaint filed against the petitioner. The complaint is legally bound to state by which made the payment was given to the petitioner herein.

(iv) It is worthwhile to note here that it is mandatory in terms of the provisions of Negotiable Instruments Act that the legal notice is to be served to the accused/ petitioner herein whereas the legal notice pertaining to the dishonouring of the said cheque has never been received by the petitioner the petitioner therefore has no information about the issuance of the legal notice as well as the institution of the instant complaint against the petitioner by the respondent herein. The legal notice which the respondent is contending to have been served dated 12.04.2018, issued through his counsel to the petitioner has actually never been received by the petitioner. The complainant even did not enclosed any ID card or any other receipt which will depict that the legal notice has been received by the petitioner herein on any such date.

(v) That since the statutory period for filling the complaint under Section 138 of Negotiable Instrument Act, starts from the day when the legal notice is served upon the person and the complaint is to be filed within a time span of one month from the date of service of the legal notice. Since the petitioner herein never received any notice he was unaware of the proceedings initiated against him in his absence.

(vi) That the Court after presentation of the above said complaint and after taking cognizance in the matter issued "summon" to the petitioner by virtue of order dated 03-02-2018 but same also never reached the petitioner as a result of which the trial Court proceeded ahead with the complaint without even ascertaining the fact of non-appearance on the part of the petitioner herein.

(vii) That the trial Court has wrongly taken cognizance of the matter without ascertaining the fact that as to whether the statutory requirement to be mandatorily adhered by the complainant has been complied with respect to the instant complaint. That the complainant is also silent about the serving of legal notice upon the petitioner neither has attached any proof of service which can clarify as to whether the legal notice was duly served upon the petitioner or not.

(viii) That the learned magistrate thereafter issued non-bailable warrants against the petitioner herein on the fact that the petitioner has remained absent on few hearings in the matter which is justified by the fact that the petitioner was not knowing that a case has been filed against him under Section 138 of Negotiable Instrument Act as no legal notice or any summon from the Court below has been received by the petitioner before the Court and the petitioner was in know how about the proceeding as against him at his back. Also the statements of the witnesses recorded by the Court at the time of taking cognizance of the matter are totally fabricated and have no connection with the transaction referred by the respondent in her complaint before the learned Magistrate.

(ix) That the petitioner is aggrieved of the maintainability of the complaint and issue of process by the Court and challenges the same by virtue of the instant petition. The complaint has been filed by misrepresenting material facts and does not comply with the procedural requirement. The complainant/respondent herein has filed the impugned complaint with hazy contents deliberately and intentionally just to pressurize and harass the petitioner.

(x) That the complaint does not at all connect anywhere the petitioner with the alleged penal offences leveled against the petitioner under various Sections of RPC and alternatively the alleged offences under RPC are to be read in context with the Section 138 of Negotiable Instrument Act as that is the grievance alleged by the complainant/respondent.

The contention of learned counsel is that the learned trial Court has not properly applied its mind to the facts and cognizance has been taken casually. It is also his assertion that the veracity of allegation is required to be tested before process was issued. It is being, however, admitted that after the process was issued, the petitioner herein appeared before the said learned JMIC, which issued process and was examined under Section 242 Cr. PC. A copy of said statement has been annexed with the petition as Annexure III, the petitioner therein has denied his liability and stated that he had remitted 5.00 lacs in the account of respondent herein, but cheques were not returned which according to had been delivered in favour of respondent herein at the intervention of Tehsildar Pampore. Statement of the accused under Section 242 Cr. PC, appears to have been recorded on 03.02.2018. The petitioner has not brought on record the copies of orders passed by the trial Court, thereafter.

The legal position is not undisputed that while taking cognizance in the matter, the Magistrate is required to examine the averments made in the complaint summarily. The material produced in support of allegations has not to be weighed in golden scales as pointed out by this Court in Abdul Samad Nagu v. Abdul Rehman Kanday & Another, in Cr. Revision No. 46 of 1980, (Per Hon'ble Mufti Baha-ud-Din Farooqi, Acting CJ), Section 204 Cr. PC, enables a Magistrate to take cognizance of an offences and issue process if there are sufficient grounds for proceedings. These words suggests that even where there is a suspicion that the accused has committed an offence that would be enough for Magistrate to take cognizance and issue process against him. Detailed discussion of the material produced is not required to be made.

It is not a case of petitioner that a Magistrate had no jurisdiction to entertain complaint or otherwise there was anything on record to which Magistrate was unmindful and which goes to the root of the case. The petitioner herein could in case the order of issuance of process to his belief was uncalled or illegal within the meaning of Section 435 Cr. PC, on the legal advice sought, challenge it by invoking the Revisory jurisdiction at an earliest and without substantial steps in participating the trial held. He has participated in the proceedings and at his convenience has now approached this Court after lapse of more than 10 months for exercise of inherent powers under Section 561_A Cr. PC. The grounds indicated herein above in my opinion do not furnish a sufficient base for its exercise. It may need reiteration herein that inherent powers under Section 561_ A Cr. PC, are exercised by the High Court sparingly and that too for advancing the cause of justice. It would be quite absurd to ask the High Court to entertain a counter version about the allegations levelled in complaint and to exercise inherent powers on this base. It would be for the learned trial Court to examine the veracity of the allegations in the complaint and the counter version as projected by the petitioner herein. This Court should in no case be expected to act as a trial Magistrate or a Court of appeal and return finding on questions of facts noted above.

For this, I am of the opinion that no ground is made out in exercise of Revisory jurisdiction. The petition merits dismissal and is, accordingly dismissed in limini.

A copy of this order be sent to learned trial Magistrate for information.