S.K.D. Goel vs State of U.P. and Others

O.P. Jain, J.—This writ petition under Article 226 of the Constitution of India has been filed with a prayer that order dated August 16, 1997 passed by Ilnd Additional Chief Judicial Magistrate, Saharanpur (Annexure-3) and order dated July 13, 1998. passed by Vlllth Additional Sessions Judge, Saharanpur (Annexure-4) be quashed.

The brief facts of the case, according to complainant, are that on March 5, 1996, Respondent No. 3 Smt. Urmila Gupta issued a cheque for Rs. 1,29,570 in favour of the Petitioner. The cheque was dishonoured on August 29, 1996. On the ground that Respondent No. 3 had closed the account on March 12, 1996. The Petitioner complainant gave a notice to the accused and when the payment was not made, a complaint was filed on October 24. 1996. The learned Magistrate issued summoning order on November 27, 1996, which is Annexure-R.A. 1.

On December 19, 1996 the accused filed objections Annexure-2 to the petition and the learned Magistrate recalled this summoning order by this order dated August 16, 1997 which is Annexure-3 to the petition. Being aggrieved against the order of recall, the complainant filed a revision before the court of sessions but it was dismissed on July 13, 1998. vide Annexure-4 to the petition. Under these circumstances the present writ petition has been filed by the complainant.

I have heard Sri G.C. Saxena, learned Counsel for the Petitioner and Sri S.K. Gupta, learned Counsel appearing for Respondent Nos. 2 to 5. Learned A.G.A. was heard on behalf of the State.

A perusal of Annexure-2 objections filed by the accused Respondent Nos. 2 to 5 shows that according to accused, Smt. Urmila Cupta did not give any cheque to the complainant on March 5, 1996. The version of the accused is that complainant Sri S.K.D. Goel was an intimate friend of Smt. Urmila Gupta''s husband Sri Jai Bhagwan Gupta. Sri S.K.D. Gocl being an officer of the L.I.C. could not directly engage in any business and therefore, an oral partnership came into existence between Sri S.K.D. Goel and Smt. Urmila Gupta in the year 1988. It is further alleged that an account was opened in the name of Smt. Urmila Gupta and she gave blank cheques and other blank papers duly signed by her to Sri S.K.D. Goel. It is stated in paragraphs 5 and 13 of Annexure-2 that this partnership came to an end in the year 1990 but some blank cheques signed by Smt. Urmila Gupta remained with Sri S.K.D. Goel and one of the cheques has been misused by Sri S.K.D. Goel for preparing a cheque for Rs. 1,29,570.

This version of the accused has been believed by the learned Magistrate and he has drawn support from the averment made in paragraph 2 of the complaint Annexure-1 in which it is stated that the husband of Smt. Urmila Gupta and father of accused Nos. 3 and 4 (Jai Bhagwan Gupta) were family friends. It is observed by the learned Magistrate that Sri S.K.D. Goel being a Development Officer in the L.I.C. could not engage in any business and therefore, it is natural that the partnership between Sri S.K.D. Goel and Smt. Urmila Gupta was oral. The learned Magistrate has believed the averment made in the objection that blank cheques and some other blank papers were given by Smt. Urmila Gupta to Sri S.K.D. Goel.

The learned Magistrate was considerably influenced by Annexure-C.A. 1 which is a leUer written by Oriental Bank of Commerce to Smt. Urmila Gupta in the year 1997, i.e. after the filing of the complaint. In this letter the Bank has stated that some cheque books were issued in the name of Smt. Urmila Gupta in the year 1989-90 and 1991 but the cheque books were actually delivered to Sri Rajeev Goel "who is the son of complainant Sri S.K.D. Goel". The learned Magistrate, therefore, inferred that, the cheque books were obtained by complainant''s son and. therefore, the version of the accused that she signed blank cheques and gave the same to Sri S.K.D. Goel, is correct. The learned Magistrate has further observed that the impugned cheque was issued on March 5, 1996 according to complainant but it was presented to the Bank on August 27, 1996. The explanation given by the complainant that the cheque was presented after 4-5 months at the request of Smt. Urmila Gupta has not been believed by the learned Magistrate, who has further observed that if Smt. Urmila Gupta wanted to close her account after issuing the cheque, she could have done so on the very next day, i.e. on March 6, 1996 and she would not have waited till March 12, 1996. For these reasons the learned Magistrate recalled the summoning order dated 27.11.1996 vide Annexure-3 dated 16.8.1997.

The learned Sessions Judge has also dismissed the revision mainly on the same grounds which prevailed with the learned Magistrate.

After giving the matter my careful consideration, I am of the opinion that the approach of the learned Magistrate and the learned Sessions Judge is entirely wrong. The summoning order could not have been recalled on the basis of probabilities and on the basis of averments made by the accused in the objection Annexure-2 filed by them. The version of the accused may or may not be correct. It is for Smt. Urmila Gupta to enter the witness box at the stage of defence and face cross-examination. Similarly Sri S.K.D. Goel, when he enters the witness box. Can be suggested that this is what actually happened. Without recording any evidence whatsoever, the summoning order could not have been recalled on the basis of probabilities. Much can be said on the other side. It is the case of the accused in paragraphs 5 and 13 of Annexure-2 that the partnership came to an end in the year 1990. If that was so where was the occasion for Sri S.K.D. Goel to retain the blank cheques signed by Smt. Urmila Gupta till the year 1996. The story that the partnership came into existence orally in the year 1988 and came to end in the year 1990, is inconsistent with Annexure-C.A. 1 on which great reliance has been placed on behalf of Respondent Nos. 2 to 5. According to Annexure-C.A. 1 one cheque book was issued in the name of Smt. Urmila Gupta as late as 10th December, 1991 and its delivery was taken by Rajeev Goel son of Sri S.K.D. Goel. If the partnership came to an end in May, 1990, as alleged in paragraph 13 of Annexure-2, where was the question of Smy. Urmila Gupta giving blank cheques to Sri S.K.D. Goel in December, 1991. All these questions are matter of enquiry and can be decided only after recording of evidence.

Learned Counsel for the Petitioner has cited Anil Saran Vs. State of Bihar and another, , in support of his contention that the defence of the accused is not to be considered for recalling of summoning order. The learned Counsel for the Petitioner has also cited Mlamoni Routray v. Bennett Coleman and Co. Ltd. 1998 SCC 1551. From which it appears that a Bench of the Apex Court has referred the case of K.M. Mathews (1992) SCC 88 : 1992 JIC 212 (SC), to a Bench of three Judges. On the other hand, the learned Counsel for the Respondents has cited Pepsi Foods Ltd. v. Special Judicial Magistrate 1998(2) JIC 9 (SC) : 1998 SCC 1400 paragraphs 28 and 29 in support of the contention that the version of the accused can be looked into. Learned Counsel for the Respondents has also placed reliance on Punjab National Bank and others Vs. Surendra Prasad Sinha, K.M. Mathew v. State of Kerala and Anr. 1991 JT (4) SC 464: 1992 JIC 212 (SC) and the case of Kailash Chaudhari v. State of U.P. 1993 ACC 664 : 1994 JIC 422 (All). The learned Counsel has also relied on Section 242, Code of Criminal Procedure and Section 245(2), Code of Criminal Procedure in support of the contention that the accused can be discharged by the Court at any time.

In the opinion of this Court, it is not necessary to discuss the above cases in detail. Assuming that the Court has the power to recall the summoning order in certain circumstances, the case in hand was not of such a nature. A summoning order cannot be recalled by the Court issuing it on the basis of probabilities and on the basis of the version given by the accused in his objection. Therefore, this Court is of the opinion that the learned Magistrate was completely wrong in recalling the summoning order. The order passed by learned Magistrate (Annexure-3) dated 16.8.1997 and the order of the revisional court Annexure-4 dated 13.7.1998 are, therefore, liable to be quashed.

At the fag end of the arguments learned Counsel for Respondent Nos. 2 to 5 has argued that even if the allegations in the complaint are assumed to be correct and the version of the accused is not believed at this stage, no offence is made out so far as Respondent Nos. 2, 4 and 5 are concerned. It is rightly pointed out that the cheque has been issued by Respondent No. 3 Smt. Urmila Gupta in her individual capacity and not as a partner of M/s. Honey Packers. Therefore, Respondent Nos. 2, 4 and 5 are not liable to be prosecuted u/s 138 of Negotiable Instruments Act or u/s 420, I.P.C. The learned Counsel appearing for the Petitioner could not give any satisfactory reply to this contention and. therefore, the same is upheld.

In view of the above discussion, the writ petition is partly allowed and order Annexure-3 dated 16.8.1997 passed by A.C.J.M. Ilnd, Saharanpur and order dated 13th July, 1998 Annexure-4 passed by VUIth Additional Sessions Judge, Saharanpur, are quashed in so far as they relate to Respondent No. 3 Smt. Urmila Gupta. The discharge of Respondent No. 2 M/s. Honey Packers, Respondent No. 4 Ranjan Gupta and Respondent No. 5 Sanjeev Gupta is upheld. Respondent No, 3 Smt. Urmila Gupta will stand trial u/s 138 of Negotiable Instruments Act and u/s 420 of I.P.C.