Rikhab Chand Bed Mutha and Ors. vs State of U.P.& Ors.

O. P. Jain, J.—This is an application under Section 482, Cr PC for quashing the summoning order Annexure ''3'' dated 19891 passed by the Chief Judicial Magistrate, Aligarh by which the accusedapplicants have been summoned to answer a charge under Section 420, IPC and under Section 138 of Negotiable Instruments Act.

The brief facts of the case according to complaint S. A. ''j'' are that M/s Ajai Trading Co., opposite party No. 2 is engaged in the business of selling food grains. The firm entered into an agreement to supply wheat to the accusedapplicants through Broker Suresh Chand & Sons opposite party no. 3. Wheat worth Rs. 5,03,78450 was supplied by the complainant out of which Rs. 1,40,000 was paid and the remaining sum of Rs. 3,63,78450 remained unpaid. In part payment of that amount the accused gave two cheques of Rs. 25,000 each. The number of these cheques are 708778 and 708779. These cheques were presented by the complainant on 4491 and 15491.

The complainant issued a notice on 9491 and another notice on 29491 through his advocate, Suresh Chand under Section ''38 (b) of Negotiable Instruments Act. These notices were served on the accused on 15491 and 3591. However, the accused failed to make payment of the amount within fifteen days of the receipt of notice and no payment was made till the filing of the complaint. This complaint was filed by opposite party No. 2 on27591.

On receipt of the complaint the Chief Judicial Magistrate passed summoning order annexure ''3'' on 19891. Being aggrieved against the same the accusedapplicants have filed the present application under Section 482, Cr PC.

In the original application the accusedapplicants have alleged that there was some business dispute between the parties and, therefore, the accused stopped payment of the cheque. In other words, according to applicant, the cheque was not dishonoured for insufficiency of funds in the account of the accused. It was also pleaded that subsequent to the filing of the complaint payment of Rs. 50,000 has been made by the accused to the complainant on 21991. So far as the plea of stopping the payment is concerned, it is clear from the counter affidavit and the rejoinder affidavit that the payment of cheques Nos. 708778 and 708779 was refused by the bank because there was no sufficient balance in the account of the accused. It is stated in the rejoinder affidavit that due to business dispute the accused withdrew the amount from his account in order to protect his interest. In this way it is admitted now that the payment of the cheque was refused by the bank for want of funds.

The applicant has filed a supplementary affidavit in which some objections have been raised which were not mentioned in the original petition. It is stated in the supplementary affidavit that the complaint has been filed against R. N. Brothers and that the names of Rikhab Chand Bed Mutha and Ajit Kumar Bed Mutha have been mentioned subsequently. A plea that the complaint has not been filed within the period prescribed by Negotiable Instruments Act has also been raised in the supplementary affidavit. The opposite party no. 2, M/s Ajai Trading Co. has filed a counteraffidavit and the applicant has also filed a rejoinder affidavit.

I have heard learned counsel for the par ties and have gone through the record.

The first contention on behalf of the applicant is that complaint annexure S. A, T was filed in a wrong court on 27591 and it was returned for presentation to proper court and that it was presented before the Chief Judicial Magistrate on 4691. Therefore, it is argued, that the limitation should be computed from the date on which the complaint was filed before the Chief Judicial Magistrate.

Another contention is that the complaint was originally filed against R. N. Brothers without disclosing the names of the accused and the Chief Judicial Magistrate ordered on 101291 that the names of the Directors of the firm may be furnished within one month otherwise the complaint is liable to be dismissed. Thereafter on 171291 the names were furnished and the process was issued to the accused. It is argued that the complaint should be deemed to have been instituted against the accused on 171291.

In my opinion both these contentions are devoid of force. The complaint was originally filed before the ACJM who returned it for presentation before the proper court and later on it was presented before the Chief Judicial Magistrate. Under the provisions of the Negotiable detriments Act complaint is required to be filed before first class magistrate and, therefore, the filing of the complaint beforethe ACJM cannot be said to be wrong. Normally an Additional Chief Judicial Magistrate exercises jurisdiction over the whole district where he is posted unless the notification appointing him circumscribes his jurisdiction. For the purpose of administrative convenience the jurisdiction of various Magistrates in the district are defined and some police stations in the district are assigned to each Magistrate. That however does not mean that a complaint presented before the ACJM is without jurisdiction.

Under the law the Magistrate takes cognizance of an offence and not of the offender. Theoretically a complaint can be filed against an unknown offender or against a person whose full particulars are not known. In the instant case the complaint was filed against Director M/s N. R. Brothers Flour Mills Pvt. Ltd. This was the description given in the cheque Annexure ''7''(C. A.l). As a complaint under the Negotiable Instruments Act has to be filed within a particular time, the complainant is not expected to find o it the names of all the Directors of the Pvt. Ltd. Co. before filing the complaint. Section 141 of the Act prescribes a procedure for filing a complaint where the offence is committed by a company. Therefore, it cannot be said that a complaint filed against the company without disclosing the names of the Director of the Company is illegal.

In view of the above discussion it is held that the complaint was filed on 27591 and that is the date which is relevant for the purposes of limitation.

In the case of the cheque the date of dishonour is 4491 the date of notice is 9491 and the date of receipt of notice is 15491. The complaint has been filed on 27591. In the case of second cheque the date of dishonour is 15491 and notice has been issued on 29491 which was served on 5591. The date of complaint is 27591. It is argued by the learned counsel for the applicant that the cause of action for the first cheque arose on 15491 and the complaint has been filed on 27591 which is beyond thirty days of the accrual of cause of action. This contention is wrong because the cause of action arises not on the date of receipt of notice but after fifteen days thereof when the amount remains unpaid. Therefore, the cause of action for the first cheque arose on 30491 and the complaint having been filed within thirty days of the date is within limitation.

It was also argued that the payment of Rs. 50,000 has been made by the accused to the complainant on 21991 by Bank Drafts and, therefore, the prosecution must come to an end. It is also argued that in pursuance of an order passed by this court another sum of Rs. 50,000 has been paid by the accused. The record shows that on 30493 an offer was made on behalf of the accused that he is ready to pay Rs. 50,000. The order sheet dated 131293 shows that the accused were allowed to deposit Rs. 50,000 as a condition for the extension of stay order. The ordersheet dated 19594 shows that a Bank Draft of Rs. 50,000 was given by the accused in the court of Chief Judicial Magistrate, Aligarh. The validity of the draft was to expire shortly. Under these circumstances it was ordered that the Chief Judicial Magistrate may in cash the draft and credit it to the court''s account. At the same time it was directed that the amount may not be paid to either party till further orders of the court. It is stated in an affidavit submitted on 211091 that both the Bank Drafts are still lying in the court of Chief Judicial Magistrate, Aligarh.

It is not necessary to find out whether the draft for Rs. 50,000 given by the accused in the court of Chief Judicial Magistrate, Aligarh have been encased or not because the offence was committed as soon as the sum of Rs.50,000 remained unpaid for fifteen days after the receipt of notice. The notice was served in the month of April, 1991 in respect of one cheque, in the month of May, 1991 in respect of the other cheque. Therefore, any payment which may have been made on 2191991or in 1993 is irrelevant for the purposes of these proceedings. It should be remembered in this connection that the total value of the wheat said to have been supplied by the complainant to the accused is about Rs. 5,00,000 and according to complainant the balance outstanding against the accused was more than Rs. 3,63,000. Annexure ''5'' to the petition shows that a sum of Rs. 50,000 sent by the accused on 21991 in the shape of two Bank Drafts of Rs. 25,000 each has been appropriated towards the total outstanding amount in pursuance of Some understanding between the parties. It cannot, therefore, be said a sum of Rs. 50,000 was paid by the accused to the complainant on account of two dishonoured cheques. In any case the alleged subsequent payment dated 21991 which is said to have been made after the filing of the complaint and after the issue of summoning order is of no consequence.

In the end it was argued that the learned Chief Judicial Magistrate was wrong in taking cognizance under Section 420, IPC because in the complaint the ingredients of that offence are not to be found. In fact Section 420, IPC is not mentioned at all in the complaint though the words fraud, deceit etc. are mentioned. Under the circumstances of the case it cannot be said that the accused had any dishonest intention from the beginning or that they intentionally made any false representation to the complainant.

In view of the above discussion, the application under Section 482, Cr PC is partly allowed and proceedings under Section 420, IPC against the applicants are quashed. The case under Section 138 of Negotiable Instruments Act will proceed. The interim stay order passed by this court on 71292 is hereby vacated.

Application partly allowed.