Atul Jain vs Chief Judicial Magistrate, Jalandhar

P.K. Jain, J.—Atul Jain, the petitioner, has invoked the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure for quashing the complaint dated 27.9.1993 (Annexure P-l), summons dated 9.3.1994 (Annexure P.3), notice dated 11.3.1995 (Annexure P.4) and the subsequent proceedings pending before the Chief Judicial Magistrate, Jalandhar respondent No. l in Criminal complaint case No. 154/2 of 1993.

The facts lie in a narrow compass. Rajinder Kumar Jain, father of the present petitioner, is alleged to have purchased certain goods on credit from respondent No. 2 vide Bill No. 793 dated 16.1.1993 for Rs. 54924.25, although the petitioner had signed the Bill in token of having received the goods under the said Bill. The said Rajinder Kumar Jain issued a cheque (No.JLA-0475152) dated 6.7.1993 for Rs. 54924.25, drawn on the Bank of India, Industrial Area Branch, Jalandhar City, in favour of the complainant i.e. respondent No. 2, which was dishonored on presentation by the Bankers of said Rajinder Kumar Jain for want of funds. After serving a legal notice, respondent No. 2 filed a complaint u/s 138 of the Negotiable Instruments Act (hereinafter called ''the Act'') against Rajinder Kumar Jain and the present petitioner.

After recording preliminary evidence in support of the said complaint, Chief Judicial Magistrate, Jalandhar, passed the order dated 24.2.1994, the relevant portion of which reads as under:''

From the preliminary evidence produced on record by the complainant a prima facie case is made out against Rajinder Kumar Jain accused for having committed an offence punishable u/s 138 of the Negotiable Instruments Act. No case is made out against Atul Jain accused, simply because he is son of accused Rajinder Kumar Jam in this case. Rajinder Kumar Jain accused is ordered to be summoned for having committed the offence punishable u/s 138 of the Negotiable Instruments Acct.

From a bare perusal of this order, it is evident that the Chief Judicial Magistrate came to the conclusion that a prima facie case for trial was made out against Rajinder Kumar Jain, and that no case was made out against the present petitioner. Accordingly, Rajinder Kumar Jain was ordered to Be summoned for having committed an offence u/s 138 of the Act. However, the summons Annexure P-3 were issued not only to Rajinder Kumar Jain but to the petitioner Atul Jain also on 9.3.1994. In response to the summons, the petitioner alongwith his father appeared before the Chief Judicial Magistrate on 12.4.1994, on which date the petitioner and his father were admitted to bail on their furnishing personal bonds in the sum of Rs. 5,000/- each with one surety in the like amount, which bonds were furnished. However, the petitioner moved an application before the Chief Judicial Magistrate to discharge him from the case. This application was rejected by the said Chief Judicial Magistrate with the following order:

Resent:-Complainant with counsel Shri P.L. Malhotra Accused on bait with counsel Shri Kapil Batra.

There is no provision in the Cr.P.C. for the discharge of the accused in summon case. As such accused cannot be discharged by the Court at this stage. A notice be, therefore, issued to the accused u/s 138 of the Negotiable Instruments Act.

Accordingly a notice explaining the allegations contained in the complaint was given to the petitioner and his father and their plea was recoded and the case was adjourned to 24.5.1995 for evidence of the complainant. In these circumstances, the petitioner has approached this Court for quashing the complaint dated 27.2.1993, Summons dated 9.3.1994, notice dated 11.3.1995 and the subsequent proceedings pending against him before the said Chief Judicial magistrate.

Notice of motion was given to the respondents. I have head the Learned Counsel for the parties and gone through the record.

The Learned Counsel for the respondents have not disputed the factual position as stated by the petitioner in his present petition. From a bare perusal of the summoning order it is evident that according to the Chief Judicial Magistrate himself, no case u/s 138 of the Act was made out against the petitioner. Even inspite of that finding in so many words recorded in his order dated 12.4.J994, the Chief Judicial Magistrate issued summons not only to the drawer of the cheque but to the petitioner also. When this error was pointed out by the present petitioner, the Chief Judicial Magistrate rejected the application of the petitioner by observing that there is no provision in the Code of Criminal Procedure for discharge of the accused in a summons case. In other words, the Chief Judicial Magistrate found himself to be helpless in correcting a grave error committed while issuing summons to the petitioner. The summons dated 9.3.1994 (Annexure P.3), the order dated 11.3.1995, rejecting the application of the petitioner and the notice dated 11.3.1995 (Annexure P.4) given to the petitioner in the complaint in question are patently illegal and without jurisdiction. Even the impugned summons, the order dated 11.3.1995 and the notice dated 11.3.1995 clearly bring about a situation which is an abuse of the process of the Court and for the purpose of securing the ends of justice interference by this Court is absolutely necessary. The Learned Counsel appearing on behalf of the respondents have conceded that no proceedings could have been initiated or continued against the present petitioner.

For the reasons mentioned above, I am constrained to accept this revision petition. The complaint (Annexure P.l), the summons (Annexure P.3) the notice (Annexure P.4) and the subsequent proceedings in Criminal Complaint No. 154/2 of 1993 against the present petitioner, Atul Jain, pending in the Court of the Chief Judicial Magistrate, Jalandhar, are hereby quashed. The Chief Judicial Magistrate shall be at liberty to proceed with the complaint against Rajinder Kumar Jain, the other accused, in accordance with law.