Ishwari Devi vs State of Punjab and Another

V.S. Aggarwal, J.—The petitioner, Ishwari Devi, has filed the present petition u/s 482 of the Code of Criminal Procedure, 1973, for quashing the complaint filed by Shyam Saroop, respondent No. 2, with respect to an offence contemplated u/s 138 of the Negotiable Instruments Act, 1881, read with Section 420 of the Indian Penal Code and the subsequent proceedings.

It is alleged that the petitioner entered into an agreement with respondent No. 2 to sell Flat No. 304, Sant Nagar, New Delhi. The sale consideration was Rs. 6,50,000. At the time of execution of the said agreement, respondent No. 2 is alleged to have made a payment of Rs. 3 lakhs. The remaining amount was to be paid subsequently. Possession was handed over to respondent No. 2 in 1993. Respondent No. 2 did not pay the balance amount to postpone the payment. It is asserted that ultimately it was decided to take back the possession of the flat and refund the amount. The petitioner issued three cheques. It was agreed that cheques will be presented at Delhi and an agreement in this regard was arrived at. It was also agreed that original documents would be returned. Respondent No. 2 presented those cheques for encashment without returning the original documents. The cheques were dishonoured. A notice was issued by respondent No. 2 which was replied to. Subsequently, respondent No. 2 presented the cheques at Punjab and Sind Bank, Rayya. They were dishonoured. This was followed by a complaint by respondent No. 2 after serving a notice.

As per the petitioner the said complaint presented in the Court of the Judicial Magistrate, Amritsar, is without jurisdiction and no case is drawn against the petitioner. He contends that the complaint has been presented at Amritsar though there was an agreement to sell the flat at Delhi, the property is situated at Delhi and the cheques were issued at Delhi. The parties agreed that the Delhi court had the jurisdiction. Thus, the court at Amritsar had no jurisdiction. The complaint otherwise also is asserted to be barred by time.

The petition has been opposed and contested.

The petitioner has appended the copy of the agreement (annexure P-1) purported to have been arrived at between her and respondent No. 2. The same was denied at the Bar and at this stage, therefore, in the present petition, it is difficult to act upon it.

All the same, it was highlighted that since the property is at Delhi, the cheques were given at Delhi, the agreement was at Delhi, therefore, the court at Amritsar has no jurisdiction. On the contrary respondent No. 2 asserted that the petitioner has assured that the cheques if presented again would be honoured and these were presented at Rayya. These were dishonoured. The petitioner denies that there was any such agreement.

Herein, there are disputed facts that have come into being. That being the position, it would be appropriate that the petitioner may apply with the learned Judicial Magistrate for dropping the proceedings. A similar question came up for consideration before the Supreme Court in the case of K.M. Mathew Vs. State of Kerala and another, . In paragraph 8, the Supreme Court held to the following effect (page 2208) :

"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. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It 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."

That being the legal position, the petitioner would be at liberty to approach the learned Judicial Magistrate at Amritsar for dropping the proceedings and raise the contentions of facts and law in this regard. The learned Judicial Magistrate will decide the same in the first instance.

It was in that event pointed out that the petitioner is an old lady and it would be difficult for her to appear on each date of hearing at Amritsar. Keeping in view the above fact, it is directed that the learned Judicial Magistrate will exempt her presence on such terms as may be deemed appropriate.