AI Structured Summary
Not yet generated for this judgment
Judgment
Naresh Kumar Sanghi, J.—Present petition u/s 482 Cr.P.C. has been filed for quashing of the complaint (Annexure P-4) and the summoning order dated 30.09.2009 (Annexure P-5) as well as the consequential proceedings, whereby the petitioners were ordered to face trial for the offence punishable u/s 138 Negotiable Instruments Act. The brief facts of the case are that the respondent-complainant had supplied certain material to the petitioners-accused and in lieu thereof, the petitioners-accused had issued a cheque of Rs. 42,76,038/-. The said cheque was dishonored, therefore, after completing all the formalities, the complaint (Annexure P-4) was filed by the respondent-complainant against the petitioners-accused. Learned Additional Chief Judicial Magistrate, Jagadhri, vide his order dated 30.09.2009 (Annexure P-5) summoned the petitioners to face trial for the offence punishable u/s 138 of the Negotiable Instruments Act.
Learned counsel for the petitioners have raised the following issues :
That the complaint was pre-mature since it was filed approximately 05 days prior to the expiry of the time period mentioned in the notice, issued in terms of Section 138 of the Negotiable Instruments Act.
That the impugned cheque was a post dated one and had been issued as a security.
If the whole complaint is taken at its face value then the case of civil nature would be made out.
On the other hand, learned counsel for the respondent-complainant has vehemently opposed the contentions raised by learned counsel for the petitioners.
Learned counsel for the respondent-complainant submitted that even if for the sake of arguments, the contention of learned counsel opposite is accepted to be true with regard to filing of the pre-mature complaint, in that eventuality, the petitioners had to show the prejudice caused to them. He further submitted that the contention raised by learned counsel for the petitioners was sustainable if they would have tendered the cheque amount before the learned trial court on their first appearance in the court. Learned counsel further contended that the cheque was not issued as a security. In fact the impugned cheque had been issued by the petitioners in lieu of the payment due against the petitioners. He further submitted that if the petitioners-accused have to substantiate their contention with regard to the impugned cheque issued as security then this fact has to be established by them during the course of the trial. Regarding the issue that the matter is of civil nature, the learned counsel for the respondent-complainant submits that if the issue discloses both the remedies i.e. civil and criminal then the aggrieved person can avail both the remedies or either of them. Therefore, none of the issue raised by the petitioners at this stage is tenable.
I have heard learned counsel for the parties and meticulously examined the material available on record.
Premature complaint
Perusal of complaint (Annexure P-4) reveals that it was presented before the learned Area Magistrate on 08.9.2009. The summoning order (Annexure P-5) was passed on 30.09.2009, therefore, the summoning order was passed after maturity of the complaint. In the matter of Prashant M. Aachawal v. Gulab Singh Raghuwanshi, (M.P.) 2007(4) RCR (Cri) 1025, Hon''ble Madhya Pradesh High Court held that if the Magistrate had taken cognizance after the expiry of due time, then the complaint was not liable to be quashed on the ground that the complaint was premature. It was also held that filing of a complaint was different than taking of cognizance. In Devinder Puri v. A.P. Solvex Ltd. 2003 (1) ISJ (Banking) 422, this Court has held that the pre-mature complaint cannot be dismissed for the reason that it was presented at an earlier date and it also does not confer any right upon the accused to absolve himself from the criminal liability. The law prescribes that no cognizance shall be taken of a premature complaint.
In view of the above, the first contention raised by learned counsel for the petitioners is not tenable.
Post-dated cheque which was issued as security
The learned counsel representing the petitioners-accused was specifically asked to show the provisions whereby issuance of post-dated cheque is prohibited but the learned counsel could not point out any such provision. The post-dated cheque is merely a bill of exchange till the date it becomes due for maturity. Therefore, merely issuance of post-dated cheque would not by itself be a ground for quashing the complaint and the summoning order. So far as issuance of cheque as a security is concerned, it is a matter, which has to be proved by the petitioners-accused during the course of trial.
After going through the material available on record any observations made by this Court would prejudice either party with regard to this issue. Suffice it to say that it is the duty of the petitioners-accused to substantiate their assertion that the cheque in dispute was issued as a security cheque, during the course of trial. Therefore, this contention raised by the petitioners-accused is also not tenable at this stage before this Court.
Civil Dispute
By now it is settled that if an issue provides the remedy of civil as well as criminal case, in that circumstance either of them or both the remedies can be availed by the aggrieved person. Therefore, this contention of the learned counsel for the petitioners-accused is also of no help to the petitioners. Resultantly, finding no merit in the petition, the same is hereby dismissed.