M/s Kapoor Brothers Roller Floor Mills vs M/s Jyoti Solvex and Refinery (P) Ltd.

M.L.Singhal, J.—M/s. Kapur Brothers, Roller Flour Mills, 64, Industrial Area, Panchkula. Haryana through Shri Vinod Kumar, its partner and attorney instituted complaint u/s 138 of the Negotiable Instruments Act, 1881 (in short the Act) as amended by the Banking, Public Financial Institutions and negotiable Instruments Laws (Amendment) Act. 1988 read with Section 406/420 IPC, against M/s. Jyoti Solvex and Refinery (P) Ltd. Food Processor and its two Directors S/Shri T.C. Jain and Vijay Jain on the allegations that on the request of the accused, the complainant supplied wheat products to the accused from time to time on credit. Eventually balance of Rs.5,43,210/-became due besides interest and other miscellaneous charges/expenses which were not paid. Accused gave cheques No. 105822, 105831,105895,105896,105897,105898, 107049 and 107050 dated 10.11.1994, 26.11.1994, 1012.1994, 17.12.1994,24.12.1994,30.12.1994, 5.1.1995 and 16.1.1996 and sum of Rs.66,500/-, 68,385/-, 67,00/-. 68,385/- 67,900/-, 67,620/ -, 67,620 and 67,620/- with the assurance that the cheques would be encashed on presentation. It was also assured that rest of the balance payment will be made after some time. These cheques were deposited by the complainant with their bankers. Complainant obtained the credit facilities from the bank against these cheques with the understanding that the cheques would be encashed in due course of time. Cheques on presentation were returned unpaid with the memo "exceeds arrangements" received by the complainant on 22.5.1995. Amount of cheque with interest and other charges after calculation were debited to the account of the complainant. After receipt of information about the bouncing of cheques from their banker, the complainant sent notice dated 26.5.1995 to the accused at their official as well as at their residential addresses through registered AD and also through UPC informing the details and demanding thereby to make payment of the dishonoured cheques with interest and the balance outstanding amount within 15 days of the receipt of notice. Registered AD and UPC notices were duly served upon the accused. Despite the receipt of registered AD and UPC notices, accused did not make payment within the stipulated time.

After recording preliminary evidence, the learned Magistrate found that there are sufficient grounds to proceed against the accused u/s 138 of the Act and put them on trial.

After appearance of the accused, the accused submitted before the Magistrate that no offence u/s 138 of the Act was made out against them as notice given to them informing them about the bouncing of the cheques and calling upon them to make payment did not conduce to the provisions of Section 138-B of the Act and this submission weighed with the learned Magistrate and he accordingly dismissed the complaint vide order dated 30.5.1997 and refused to proceed further with the complaint.

Aggrieved from this order dated 30.5.1997 passed by Chief Judicial Magistrate, Panchkula, M/s. Kapur Brothers Roller Floor Mills, 64, Industrial Area, Panchkula through Shri Vinod Kumar, its partner and attorney have come up in revision to this court.

I have heard the learned counsel for the petitioner, learned Counsel for the respondents and have gone through the record.

Learned Counsel for the petitioner submitted that the cheques were presented by the petitioner (complainant) to their banker on 5.5.1995 and they were informed on 22.5.1995 that the cheques had been dishonoured and they after the receipt of the information about the bouncing of the cheques from their banker sent notice dated 26.5.1995 to the accused and after notice dated 26.5.1995 had been served upon the accused through registered AD and well as through UPC, they instituted this complaint on 15.6.1995. Learned counsel for the petitioner submitted that the petitioner got cause of action against the accused after they had been informed about the bouncing of the cheques by their banker. Central Bank of India, Bhagirath Palace, Delhi informed their banker i.e., Bank of Baroda about the bouncing of cheques through letter dated 22.5.1995 and the Bank of Baroda informed him about the bouncing of cheques when presented on Central Bank of India, Delhi learned Counsel for the petitioner submitted that their banker debited Rs.600V- on 19.5.1995 in their amount as B/charges. In this case, the date when the petitioner (complainant) actual ly received information from their banker about the bouncing of cheques is missing. No official of Bank of Baroda was examined by the complainant during the course of preliminary inquiry and similarly no official from Central Bank of India, Bhagirath Palace, Delhi was examined. Thus, the date when the petitioner-complainant received information from their banker i.e. Bank of Baroda regarding the bouncing of cheques and the date when they were presented on Central Bank of India, Bhagirath Palace, Delhi through their banker is missing.

Faced with this position, learned Counsel for the petitioner submitted that the petitioner should be permitted to examine official of the Bank of Baroda, Sector 17, Chandigarh so that he could depose as to when they (Bank of Baroda) received information about the bouncing of cheques from Central Bank of India, Bhagirath Palace, Delhi and further when the Bank of Baroda passed on that information to the petitioner so that it could be calculated whether the accused got 15 days clear time to make the payment from the date of receipt of information about the bouncing of cheques through the instrumentality of notice Ex. C31 and also that notice was sent within 15 days of the information about the bouncing of cheques.

It is true that the petitioner should have examined at least evidence sufficient enough to warrant the summoning of the accused for being put up at trial. During preliminary inquiry, only Vinod Kumar was put into the witness box. Complainant should have examined some official of the Central Bank of India, Bhagirath Palace, Delhi. Section 138 of the Act reads as follows:-

Dishonour of cheques for insufficiency etc. of funds in the account-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 provision of this Act, be punished with imprisonment for a term which may extend to one 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 in due course of the cheque, as the case may be, makes a demand for payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(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.

Learned Counsel for the respondents, on the other hand, submitted that it lay upon the petitioner (complainant) to lead every evidence during summoning them and if the petitioner did not lead sufficient evidence, the petitioner should not be now permitted to fill up the lacuna. It was submitted by him that it is a revision and in revision, this court can set aside the order passed by the lower court if it feels that it is attended by glaring illegalities, infirmities or irregularities. It was submitted that this court cannot set aside the impugned order if the same appears to have been passed in consonance with the evidence produced by the complainant during the course of preliminary inquiry. Suffice it to say, it is not a game of tricks. Here the valuable rights of the parties are involved. Valuable rights of the parties should not be sacrificed at the alter of procedure. It is to meet this situation that Section 311 Cr.C.P. has been enacted by the legislature. Section 311 Cr.P.C. reads as follows:-

Power to summon material witness, or examine person present. - Any court may, at any stage of any inquiry, trial or other proceedings under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine and such person if his evidence appears to it to be essential to the just decision of the case.

The phrase "essential to the just decision of the case" used in Section 311 Cr.P.C. applies as much to the complainant as it applies to the accused if the court feels that particular witness should be examined for the just decision of the case, the court can examine that witness. In this case as to when information was received by the complainant from the Bank of Baroda i.e., their banker about the bouncing of cheques is lying in obscurity and therefore, evidence to clear this obscurity is essential to be examined.

For the reasons given above, the impugned order passed by the Magistrate dismissing the complaint has to be set aside and it is accordingly set aside and the case is remanded to the learned Magistrate with a view to his allowing the complainant whatever evidence he wishes to examine during preliminary inquiry and thereafter pass an order on merit viz. whether there is sufficient ground to proceed against the accused or there is no sufficient ground to proceed against the accused. Accused need not appear before the Magistrate till any order is passed by the Magistrate saying that there are sufficient grounds to proceed against them.

Revision accepted. Case remanded.