Dr. Vijay Gupta vs Indramani Joshi

Servesh Kumar Gupta, J.—By way of this Criminal Miscellaneous Application, applicant has prayed for quashing the summoning order dated 20.12.2005, passed by the Special Judicial Magistrate, Rishikesh (Dehradun) in Complaint Case No. 795/2005 u/s 138 of the Negotiable Instruments Act and Section 420 IPC. The applicant has also prayed to quash the order dated 23.12.2008, whereby the objections made against the said summoning order have been rejected by the court below and the summoning order was affirmed.

Heard learned Counsel for the parties and perused the papers on record.

The factual backdrop of the case is that on 11.11.2005, Respondent Indramani Joshi filed two complaints simultaneously, one against Dr. Vijay Gupta (applicant) and the another against Ram Gopal. These complaints were numbered as Complaint Case No. 795/2005 and 794/2005 respectively. The learned Magistrate, after recording the statements u/s 200 and 202 Code of Criminal Procedure and having perused other documentary evidence, passed the impugned summoning order dated 20.12.2005 against both the accused persons. Out of them, only Dr. Vijay Gupta has challenged the said summoning order passed in Complaint Case No. 795/2005.

Before filing the aforesaid two complaints, the complainant/Respondent, as is required under the Negotiable Instruments Act, sent separate notices to Dr. Vijay Gupta and Ram Gopal. But at the time of filing the complaints, the notices, which were pre-requisites for initiation of the proceedings u/s 138(b) of the NI Act, got interchanged on account of mistake on the part of the learned Counsel for the complainant i.e. notice relating to complaint case No. 794/2005 was annexed with the Complaint Case No. 795/2005 and vice versa. However, when this slip-up came into knowledge of the learned Counsel for the complainant, an application was moved to place these notices in their respective files so that the pleadings of the complaints may appear in their correct order. The application was opposed on behalf of the accused persons, but the same was allowed on 18.2.2008, and the above notices were kept with their respective files.

The accused persons again challenged the validity of summoning order raising similar objections elaborately before the Magistrate. But after hearing both the parties, the objections were rejected by the learned Magistrate vide his order dated 23.12.2008. Thus, the order of cognizance remained sustained.

It is not the case of the applicant that no notice was sent to him before filing the complaint or that no averment to this effect was made in the complaint. The only contention of the learned Counsel for the applicant is that since the notice of another complaint, as stated above, was annexed with the complaint filed against him and the copy of original notice given to him was missing from the file, therefore, the order of cognizance dated 20.12.2005 is vitiated as it gives the impression that the learned Magistrate has not applied his mind properly at the time of passing the cognizance order, which could be passed only after verifying the fact as to whether the same notice u/s 138(b) of the NI Act was given by the complainant to the accused which is matching with the complaint. The facts of each complaint case were different and when the cognizance was taken on the basis of the said facts stated in the complaint, without being matched with the particulars of the notice annexed therewith, then the impugned order of cognizance is nothing but factually a wrong order.

Be that as it may, as stated above, it is not denied that notice was given to the accused applicant and it was also duly received by him. The only error pointed out on behalf of the applicant is that notice of another complaint was annexed. But the said error is on account of inadvertence of learned Counsel for the complainant. It is settled principle of law that for the laches on the part of the Advocate, the litigants cannot made to suffer. Apart from this, a Magistrate can pass the cognizance u/s 204 Code of Criminal Procedure keeping in view not only the facts as disclosed in the notice but also considering the averments as stated in the complaint itself. The averments made in the complaint find corroboration from the statement of the complainant, which was made on oath in the court, and it was sufficient enough for passing the order of cognizance, which presupposes the application of mind by the Magistrate and prima facie makes out the guilt of the accused. Therefore, even if it is assumed that the notice, as required u/s 138(b) of the Act, was not on the record at the time of pondering over on the question of taking cognizance, in that situation also the Magistrate was competent to pass the order of cognizance merely on the basis of the statement of the complainant, made on oath, supporting the contents of the complaint. Asking for additional evidence u/s 202 Code of Criminal Procedure or going through other documentary evidence is precautionary/directory. Hence, in the above narrated facts and circumstances of the case, if the notices got interchanged, it does not make the position of accused person absolving from criminal liability. Such an error, rectified subsequently, shall not render the cognizance order unlawful.

For the reasons recorded above, the petition is bereft of merit and the same is hereby dismissed.

Registry is directed to inform the court concerned accordingly.