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Judgment
Nishita Mhatre, J.—The petitioner challenges the order passed by the Sessions Judge in Criminal Revision Application No.689 of 1998 on 29.11.1999 setting aside the order passed by the Metropolitan Magistrate; 28th Court, Esplanade rejecting the discharge application filed by the accused.
The petitioner who is the complainant had filed complaint bearing No.282/S/ 1993 u/s.138 of the Negotiable Instruments Act against respondent Nos. l to 4. The complainant alleged that certain cheques issued by the respondents had been dishonoured as his bankers informed him that the respondents had stopped payment of the cheques. A notice was issued by the petitioner''s advocate on 01.06.1992 calling upon the accused to pay the amount due under the dishonoured cheques within 15 days of the receipt of the notice. It appears that although the notice sent by the registered post was returned with an endorsement "not claimed'', the'' notice sent Under Certificate of Posting was received by the respondents. The petitioner then filed the complaint claiming that the respondents had stopped payment of Rs.37,982/- due and payable to the petitioners.
An application for discharge was filed by the respondents who were the partners of the firm. The main contentions raised in the discharge application were (i) that there was no averment in the complaint that the cheque was dishonoured with the remark "payment stopped by the drawer"; (ii) there is no notice issued as required u/s 138 of the Negotiable Instruments Act. The petitioner replied to this application and opposed the discharge. On 01.07.1998, the learned Metropolitan Magistrate rejected the discharge application. Aggrieved - by this decision, Respondent No. l filed criminal revision application No.689 of 1998 on 20.11.1999 before the Sessions Court. This revision application has been allowed. Hence, the present petition.
The main submission of the learned advocate for the petition is that the petitioner had stated in his complaint that accused Nos. l, 2, and 3, who are the partners of the accused No.4 firm, were carrying on business as cloth merchants. It is also submitted that there are averments made in the complaint which indicate the complicity of the accused. The learned advocate then relied on the judgment of the Madras High Court in the case of N. Doraisamy and another etc. Vs. M/s. Archana Enterprises and etc., in support of his submission that the petitioner would have to prove at the stage of the trial the involvement of the accused and when the Court considers the discharge application there was no need for the petitioner to prove to the hilt that the accused were guilty of the offence.
A perusal of the complaint indicates that the petitioner has not made any specific averments against the accused. All that has been stated is "1 say that the accused 1 to 3 are the partners of M/s. H.G.Garments carrying on their business in cloth at the above stated address and residing at the above stated address". It has then been stated that the accused gave two cheques to the petitioner dated 08.05.1993 of Rs. 19,928/ - and dated 10.05.1993 for Rs.10,054/-. It is then alleged that on presentation of the cheques for encashment it was discovered that the accused had directed the bank to stop payment. There is an averment thereafter in the complaint that the notice was sent on 01.06.1993 to the accused. However, none of the averments in the complaint point out to the specific role played by any of the accused. There is no averment as to who had signed the cheque nor is there an averment.
As held by the Supreme Court in the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhatta & Anr. reported in 2007 (1) ACJ 668 (S.C.) : 2007 (2) Criminal Court Cases 026 (S.C.) : 2007 (2) Civil Court Cases 127 (S.C.) : (2007) 2 SCC (Cri.) 192 and by this Court in Shishir B.Desal & Anr. v. Cent Financial Services Ltd. & Anr. reported in 2006 All MR(Crl.) 2083 that a complaint u/s 138 of the Negotiable Instruments Act cannot be vague but must disclose the involvement of the accused in the dishonour of a cheque. No such averments are found in the present complaint and hence, the Sessions Court has rightly discharged the accused. The judgment relied on by the learned advocate for the petitioner is of no avail.
Although the complaint was filed against four accused who are respondent Nos. 1 to 4 herein, the petition against Respondent Nos. 2 and 3 has been dismissed since they were not served.
The petition is dismissed. Rule discharged. No costs.