Sheoji Prasad vs The State of Bihar and Debjit Basu

I.P. Singh, J.—This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short ''the Code''). It is directed against the order dated 21.8.1995 passed by Shri Sheo Bachan Yadav, Judicial Magistrate, Patna in Tr. No. 681/93/324/95 by which in exercise of his powers u/s 319 of the Code he summoned the Petitioner to face the trial for the offence u/s 138 of the Negotiable Instruments Act, 1881 (in short ''the Act'').

From the application it appears that opposite party No. 2 Deojit Basu a partner of Ashok Transport Agency, filed a complaint petition before the Chief Judicial Magistrate, Patna against one Ashok Kumar Singh. The learned Chief Judicial Magistrate after registering the complaint transferred the same u/s 192 of the Code to the court of the learned Judicial Magistrate named above. The allegation made in this complaint petition was u/s 420 of the Indian Penal Code and 138 of the said Act. It was alleged that accused Ashok Kumar Singh who was the proprietor of M/s Vishali Tyres, Jhumri Tilaiya; pursuant to an agreement between him and the complainant used to send the consignment of goods to the consignee without Bilty through the transport agency of the complainant. Various goods were delivered as per this arrangement in the period from 30.4.1992 to 31.1.1993. In view of the hardship of accused Ashok Kumar Singh the consignments were delivered against the post dated cheque for an amount of Rs. 3,60,995/- vide cheque No. LKR-052912 dated 21.5.1993 drawn on United Bank of India, Jhumri Tilaiya. This amount covered the entire cost of goods delivered to this accused. Opposite party No. 2 presented this cheque dated 21.5.1993 to his Bank, namely, Punjab and Sindh Bank, Fraser Road, Patna on 21.5.1993. However, the aforesaid Bank on 25.6.1993 informed the opposite party No. 2 that the United Bank of India, Jhumri Tilaiya branch had informed it that the account of the accused was closed on 19.4.1993 itself.

Opposite party No. 2 thereafter contacted this accused several times who promised to pay the amount of this cheque, but failed. Thereafter on 3.7.1993 a legal registered notice as required by the said Act was sent to this accused. Even then the accused failed to make this payment even after 15 days of the receipt of the notice. As such the complaint petition was filed u/s 138 of the said Act and Section 420 of the Indian Penal Code. On 25.8.1993 opposite party No. 2 was examined on solemn affirmation in which also he named only accused Ashok Kumar Singh as the proprietor of M/s Vaishali Tyres. It has been pointed out that neither in the complaint petition nor in his statement on solemn affirmation opposite party No. 2 had said any thing against the present Petitioner. During enquiry u/s 202 of the Code two witnesses were examined by the learned Judicial Magistrate. They also did not say anything against the present Petitioner. On the conclusion of the enquiry accused Ashok Kumar Singh only was summoned and put on trial. In the course of trial four witnesses were examined before the framing of the charge. Out of them two have stated that the present Petitioner was a partner'' of M/s Vaishali Tyres along with accused Ashok Kumar Singh. Subsequently a petition was filed before the learned Judicial Magistrate u/s 319 of the Code on which the impugned order issuing summons to the present Petitioner was passed for standing his trial in this case.

The Petitioner has contended that admittedly the cheque in question was not issued by him and no demand for payment of money was made to him. No notice as required u/s 138 of the Act was ever given to him. In the complaint petition also he was not named as an accused. Even in his statement on solemn affirmation opposite party No. 2 has not named him as an accused. He has also not stated that M/s Vaishali Tyres was a partnership firm of which the present Petitioner was ''also a partner. There is no evidence to show any connivance between the present Petitioner and accused Ashok Kumar Singh. The impugned order is also hit by Section 142 of the said Act. On these grounds amongst others it has been contended that the impugned order be quashed.

A counter affidavit filed on behalf of the opposite party No. 2 is on the record. He has stated that the evidence of the four witnesses examined prior to the framing of the charges clearly shows that this Petitioner was one of the partners of the firm M/s Vaishali Tyres, Jhumri Tilaiya dealing in CEAT Tyres. Even P.W. 4 the Regional Manager of CEAT Tyres has proved certain documents to show that the present Petitioner was a partner of the said firm. These documents are Exts. 5 and 6. Under the aforesaid circumstances it has been contended that this revision application is fit to be dismissed.

The parties have been heard at length on the various points raised in this revision application. I will firstly refer to the point taken in the counter affidavit of the opposite party No. 2 namely, that as per Exts. 5 and 6 proved by P.W. 4, Vikram Malhotra, the Regional Manager of CEAT Tyres, the Petitioner had signed them as the partner of M/s Vaishali Tyres and, therefore, he can not be allowed at this stage to deny this fact. Annexures R-2/A have been produced alongwith counter affidavit as the documents marked as Exts. 5 and 6 as proved by P.W. 4 before the framing of the charge. On behalf of this opposite it has been submitted that these documents bear the signature of the present Petitioner and they are sufficient to show that the present Petitioner was the partner of M/s Vaishali Tyres. The Petitioner has denied his signature on them. He has contended that even if it be assumed for a moment for sake of the argument that the signatures appearing on these documents are of the Petitioner they simply show "buyers signature". They do, not show that the present Petitioner was a partner in the aforesaid firm. It is well known that there is a practice that even if an employee is sent for making necessary purchase or for placing orders before another firm he is required to put his signature on the papers on behalf of buyers in the column "buyers signature". As such nothing much can be made out from this allegation made by the opposite party No. 2 or even from Exts. 5 and 6 inasmuch as nowhere the present Petitioner is alleged to have signed as a partner of the said firm.

On behalf of the Petitioner it has been pointed out that admittedly the cheque in question was not issued by him and as such he can not be held reliable for any offence u/s 138 of the said Act. It has also been pointed out that admittedly no demand for the payment of the money was ever made by opposite party No. 2 to the present Petitioner. Also it was submitted that no notice to the present Petitioner u/s 138 of the Act was given to him. Under the aforesaid circumstances it has been pointed out that no offence u/s 138 of the said Act has been made out against the present Petitioner. Further the present Petitioner has strongly denied that he is a partner of M/s Vaishali Tyres or that he has got any connection with the same. He did not own any money to opposite party No. 2 for which he was required to issue any cheque to him. As a matter of fact it is not the prosecution case that the cheque in question was issued by him. Hence he has submitted that no case at all for issuing summons to him u/s 319 of the Code has been made out.

I will firstly refer to some relevant facts in this connection. The copy of the complaint petition is on the record. In it only one person, namely, Ashok Kumar Singh, has been shown as the accused. He has been described as owner/proprietor/partner of M/s Vaishali Typres of Jhumri Tilaiya. In the concluding portion of paragraph No. 1 of the complaint petition it has been stated that this accused "Ashok Kumar Singh" was the proprietor/owner of M/s Vaishali Tyres. In his statement on solemn affirmation opposite party No. 2 in the very first sentence has stated that Ashok Kumar Singh is the proprietor of M/s Vaishali Tyres. From the aforesaid it becomes clear that Ashok Kumar Singh the named accused in this case is the sole proprietor of this firm and he does not have anybody as a partner of this firm much-less the present Petitioner. During the enquiry u/s 202 of the Code two witnesses have been examined. P.W. 1 is Kripa Nath Das and P.W. 2 is Ashok Kumar Rai. In their evidence none of them have stated anything against the present Petitioner. P.W. 1 has stated that Ashok Kumar Singh was the proprietor of M/s Vaishali Tyres, Jhumri Tllaiya. P.W. 2 who happens to be an employee of the firm of opposite party No. 2 has also stated this fact that it is only Ashok Kumar Singh who is the proprietor of this firm. This witness Ashok Kumar Rai has again been examined as P.W. 1 before the learned trial court before framing of the charge. Similarly, P.W. 1 Kripa Nath Das was also re-examined as P.W. 3 before the framing of the charge. It is in their evidence at this stage that for the first time they have stated that the Petitioner is a partner of the firm M/s Vaishali Tyres. Their this statement is in complete contradiction with their earlier statements recorded u/s 202 of the Code in which they have not whispered even a word against the present Petitioner and have not stated that M/s Vaishali Tyres was a partnership firm in which the present Petitioner was a partner. On the other hand they have clearly stated that this firm is a proprietorship firm of accused Ashok Kumar Singh who was the sole owner. So far as P.W. 4, Vikram Malhotra, is concerned I have already referred to his evidence earlier. P.W. 2 is opposite party No. 2. He has also stated that in his evidence before charge that accused Ashok Kumar Singh and the present Petitioner are both partners of M/s Vaishali Tyres. This statement however is in complete contradiction with his earlier statement u/s 202 of the Code in which he has not said a word against the present Petitioner. On the other hand he has stated that accused, Ashok Kumar Singh, was the sole proprietor of M/s Vaishali Tyres. It is well known that important omissions also amount to contradictions and these two statements of P.W. 2 (O.P.) can not be reconciled.

Thus a critical examination of the evidence of four witnesses examined before the framing of the charge clearly points out that in this direction a conserted attempt on behalf of the prosecution has been made at this belated stage to implicate the present Petitioner in this case by filing a petition u/s 319 of the Code. On behalf of the Petitioner it has been submitted that he can not be summoned in this case under this provision of law since there is no material against him to warrant an interference that he had played any role in the matter. He has already pointed out that no document has been brought on the record to show his complicity in the alleged offence. According to him in any view of the matter no offence under the said Act can be made out against him because neither he is an author of cheque in question nor any demand was made from him nor any notice was ever given to him as required by law.

This takes us to the consideration of the true scope of Section 319 of the Code. It lays down that if in the course of any enquiry into or trial of an offence it appears from the evidence that any person not being the accused had committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. Here it is important to note the expression "the court may proceed against such person" occurring in this section. Can this provision of law be interpretated to me that the moment any witness has named a person as a participant in the said offence invariably the court has to issue summons to him under the provisions of Section 319 of the Code? It may, however, be stated that these words make it clear that this is a discretionary power which may be exercised by the Magistrate on the consideration of various factors and not simply the statement of a witness made before the framing of the charge. This question came up for consideration before the Hon''ble Supreme Court in the case of Punjab National Bank and others Vs. Surendra Prasad Sinha, . In this decision the Hon''ble Supreme Court has observed that before issuing of the process in a complaint case relevant facts and circumstances should be considered. It was also held that the process should not be issued mechanically on the basis of the complaint filed as vendetta to harass persons. It has been observed as follows in paragraph 5 of this decision:

It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance.

From the facts of the said case it would appear that this Bank had in its possession fixed deposit receipt as guarantee for due payment of the loan of Rs. 15,000/- taken by one Sriman Narain Dubey. When the principal debtor did not re-pay the debt the Bank had appropriated the fixed deposit receipt of the guarantor for which a case was lodged against the Bank authorities including its Chairman and Managing Director. It was under the aforesaid circumstances that the above noted observation was made by the Hon''ble Supreme Court.

From the aforesaid discussions it would become clear that the facts and circumstances on record as also the law on the subject do not warrant issue of summons to the present Petitioner, since the Hon''ble Supreme Court has already cautioned that this provision of law should not be made an instrument of oppression or needless harassment of anybody or it may be used to wreak personal vengeance against him. In the present case it has been pointed out that neither in the complaint petition nor in the statement on solemn affirmation nor even in the evidence of two witnesses examined u/s 202 of the Code there is any whisper of any allegation against the present Petitioner. It has been submitted on his behalf that ever since the trial of this case was started before the learned Magistrate a conserted attempt has been made on behalf of the prosecution for the reasons best known to it to drag him in this case as an accused. It has also been pointed out that the prosecution has not been able to show or even alleged any conspiracy between him and accused Ashok Kumar Singh at the initial stage of the case. Admittedly the cheque was not issued by the Petitioner nor any demand for any money by opposite party No. 2 was made from him. Admittedly no notice was given to him as required u/s 138 of the said Act. No conspiracy has been alleged against him in the complaint petition. Under the aforesaid circumstances his case appears to be one in which the discretionary power of the court under the provisions of this section are attracted and he may successfully invoke the said power in his favour. On the aforesaid ground the impugned order can not be sustained.

I have carefully gone through the impugned order No doubt in this order dated 21.8.1995 a reference has been made to the evidence of P.Ws. 2 and 4 as also of other witnesses, namely, P.Ws. 1 and 3 who were earlier examined u/s 202 of the Code. As pointed out above P.Ws. 1 and 3 had not whispered a word against the present Petitioner in their evidence recorded u/s 202 of the Code. Under the aforesaid circumstances the impugned order can not be sustained.

Certain other points have been raised in this revision application and I will make a passing reference to them. In the first place my attention has been drawn to the facts that though 25.9.1993 appeared as the date on this post dated cheque, accused Ashok Kumar Singh had already closed this account on 19.4.1993 itself i.e. before the date put on the cheque for its encashment. It has been urged on behalf of the present Petitioner that under the aforesaid circumstances Section 138 of the said Act is not attracted because it is only when the cheque is returned back unpaid by the Bank on account of the amount being insufficient to honour the same or if the amount of cheque exceeds the amount arranged to be paid by the Bank then only offence u/s 138 of the Act is committed. In other words it was his submission that if the account itself was closed on 19.4.1993 before this cheque was actually presented on 21.5.1993 the provision of this section would not be attracted since it is only under the two circumstances mentioned above that the provisions of this section will apply. This submission of the learned Counsel however, does not appear to be correct as held by the Hon''ble Supreme Court in the case of NEPC Micon Limited and Others Vs. Magma Leasing Limited, . In the said case the Bank had returned the cheque with the remark "account closed". The Hon''ble Supreme Court held that this will mean that the cheque has returned unpaid on the ground that the amount of money standing to the credit of that account was NIL at the relevant time apart from it being refused. On this ground it was held that the provisions of Section 138 of the Act would be attracted also in a case in which the cheque was returned without payment on the ground that the account on which it was issued was already closed from before. Hence I do not find any merit in this contention.

On behalf of the Petitioner it has further been submitted that the impugned order is also hit by the law of limitation as contained in Section 142 of the said Act. In this connection my attention has been drawn to the fact that on 25.6.1993 the Bank concerned had informed opposite party No. 2 that the account on which this cheque was issued was already closed on 19.4.1993. As per proviso (b) of Section 138 of the said Act, a demand for the payment of the amount of the cheque has to be made by giving a notice in writing to its drawer within 15 days of the receipt of the information by him from the Bank regarding the return of the cheque as unpaid. In the present case the legal notice was given on 3.7.1993 which is within 15 days of 25.6.1993 being the date on which the Bank gave the information about the insufficiency of the fund. Hence clearly it was within the time. Under Clause (c) of the proviso of this section it is again within 15 days of the receipt of the notice that the drawer of the cheque has to make the payment. In the present case no payment was made and 15th day expired on 22.7.1993 hence there is no default on this point also. The complaint petition was filed on 19.8.1993 which is also within the statutory period. However, in paragraph Nos. 19 and 20 of the present application it has been contended that it was for the first time on 30.6.1995 that the petition u/s 319 of the Code was filed against the Petitioner and the learned Judicial Magistrate by his impugned order dated 21.8.1995 had summoned the Petitioner to face his trial. It has been pointed out in paragraph No. 20 that this issuing of process against the Petitioner is hit by the provisions of Section 142 of the Act, according to which cognizance of the offence has to be taken within one month of the date on which the cause of action arises under Clause (c) of proviso of Section 138. In the present case as stated above the complaint was filed in time and the cognizance was taken on the basis of this complaint petition before its transfer u/s 192 of the Code. It need not be pointed out here that the cognizance is taken of the offence and not of the offenders as held by the Hon''ble Supreme Court in the case of Raghubans Dubey Vs. State of Bihar, . Hence even when the order u/s 319 of the Code against the present Petitioner was passed on 21.8.1995 this will not make any difference inasmuch as the cognizance of offence was taken within the statutory time and this will mean that the cognizance of the offence also against the present Petitioner was taken on the same day well within time. Hence I do not find any force in this contention of the learned Counsel for the Petitioner.

Before concluding I will like to briefly mention the contention raised on behalf of the opposite party that the present revision application is hit by Section 397(2) of the Code inasmuch as the order of the Magistrate directing issue of process is an inter-locutory order not amenable to revisional jurisdiction. I, however, do not find any force in this contention of the learned Counsel for the opposite party in view of the clear decision on this point by the Hon''ble Supreme Court in the case of Rajendra Kumar Sitaram Pande and Etc. Vs. Uttam and Another, in which it has clearly been held that the order of the Magistrate directing issuance of process is not an inter-locutory order and therefore, amenable to revisional jurisdiction.

From the detailed discussions made above it becomes perfectly clear to me that the impugned order passed by the learned Magistrate u/s 319 of the Code can not be sustained in the eyes of law for the reasons stated above and it is liable to be quashed.

For the reasons stated above this revision application is allowed and the impugned order is quashed.