T.N.Chaturvedi vs Karnail Singh

Harphul Singh Brar, J. (Oral)

This is an application under Section 482 of the Code of Criminal Procedure, for quashing the complaint, dated January 22, 1993, annexed as Annexure P2 with the petition, under Section 138 of the Negotiable Instruments Act, and the summoning order, dated February 11, 1993, annexed as Annexure P3, passed by the Sub Divisional Judicial Magistrate, Nabha, on the following grounds :

(i) that the complainant is not the holder of the cheque in due course and is not competent to file a complaint on his own, as the cheque was issued through the payee account of Ms. Chamanpreet Kaur, daughter of the respondent;

(ii) that under Section 138 read with Section 142(a) of the Negotiable Instruments Act, complaint can be filed only by payee or holder in due course. Since the complainant is not holder in due course, the complaint is not maintainable at the behest of the respondentcomplainant, may be he is the father of Ms. Chamanpreet Kaur in whose name the cheque was issued;

(iii) that the Court has got no territorial jurisdiction to entertain the complaint;

(iv) that the summoning order, Annexure P3, suffers from a palpable error because the Sub Divisional Judicial Magistrate, Nabha accepted the averments of the respondentcomplainant at its face value and although exhibited the offending uncleared cheque Exhibit P4 on record on January 21, 1993 but failed to notice that it was an account payee cheque in the name of the daughter of the respondentcomplainant and was not issued in the name of the bearer.

Reply has been filed by the respondent in which the abovementioned points made out to quash the complaint and the summoning order have been rebutted.

It is stated in para 7 of the reply that the complaint was rightly filed by the answering respondent as the cheque was issued in the name of Miss. Chamanpreet Kaur, daughter of the dependent or bearer. It was never issued through the account payee of Miss. Chamanpreet Kaur and bare look at the cheque falsifies the version of the petitioner. The complainant was the holder in due course and, therefore, was competent to file the complaint in question. As stated above, the cheque was a bearer cheque. Moreover, the whole amount had been paid by the complainantrespondent from his personal account at Nabha. Ms. Chamanpreet Kaur daughter of the deponent has no independent source of income and is dependent on her father, that is, the complainant.

It is then mentioned in Para 7(iii) of the reply while denying the contentions made in the application, saying that Nabha Court is fully competent to entertain the complaint and to try the same as the Court had got the jurisdiction due to the fact that notice under Section 138(b) of the Negotiable Instruments Act was issued by the dependent calling upon the accusedpetitioner to make payment within the prescribed period of fifteen days of the receipt of the notice at Nabha. The answering respondent was a practising lawyer at Nabha and a permanent resident of Nabha Town. The payment to the accused was made at Nabha and it was the duty of the accused petitioner to return the money at Nabha. Thus, the cause of action had arisen at Nabha. It is further averred that the petitioner issued the cheque as he had taken the money from the complainant but the cheque was dishonoured. Legal notice was given to the petitioner in time to return the money but he did not do so and thus, he has been rightly summoned under Section 138 of the Negotiable Instruments Act by the learned Sub Divisional Judicial Magistrate, Nabha. On the basis of the reply, according to the learned Counsel for the respondent, both the complaint as well as the summoning order are legal and valid in view of the judgment in Bhagat Ram and others v. Gurbhej Singh, 1993(3) RCR 194 .

The learned counsel for the petitioner has cited M/s. Probathi Agencies v. The State of Karnataka, 1991(2) RCR 685 (Karnataka) , P.K. Muraleedharan v. C.K. Pareed and another, 1992(3) Recent C.R. 673 (Kerala) , U.C. Saxena, Managing Director, Mehra Machines & Equipments Pvt. Ltd., Noida v. Madan Mohan, (19932) 104 P.L.R. 161 and M/s. Goutham T.V. Centre and another v. M/s. Apex Agencies and another, (A.P.), 1993(2) All India Criminal L.R. 152, in order to substantiate his arguments for quashing the complaint as well as the summoning order.

On the other hand, the learned counsel for the respondent has cited T.K. Khungar, Proprietor, M/s. T.K. Traders v. Sanjay Ghai, 1993(3) RCR 612 . M.M. Malik and others v. Prem Kumar Goyal and another, 1991(2) C.L.R. 366, Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar and another, 1993(2) RCR 210 and Banarsi Dass v. Mohinder Kumar Pahwa, 1994(1) RCR 220 , in order to substantiate his points to show that the Court at Nabha had got the jurisdiction to entertain the complaint and the complainant was competent to file the complaint when the cheque was also a bearer cheque.

I have heard the learned counsel for the parties. It is not such a case that on its bare reading, the complaint can be quashed Moreover, the summoning order issued on the basis of the complaint by the Sub Divisional Judicial Magistrate, Nabha, is only an interim order and not a judgment. Thus, I would not like to go into these questions at this stage under the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. The order can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.

In this view of the matter, I would not like to go into the disputed question of law and fact raised in this petition and I leave the parties to urge all these points before the Magistrate concerned.

In view of my detailed discussion above, this petition is dismissed without having any force.