Rahul Dev vs Subash Singh

Sanjay Dhar, J

A perusal of minutes of the proceedings reveals that nobody has been appearing for the petitioner for quite some time. Today also, nobody has appeared on behalf of the petitioner.

The ground urged in the petition for impugning the complaint filed by the respondent against the petitioner for offence under section 138 of Negotiable Instrument Act is that the learned trial Magistrate has not recorded his satisfaction at the time of passing of order whereby, process has been issued against the petitioner. The other ground urged in the petition is that the partnership firm has not been impleaded as a party to the complaint.

From the perusal of the record, it is clear that learned trial Magistrate while issuing process against the petitioner has recorded his satisfaction that offence under section 138 of Negotiable Instrument Act is made out against the petitioner. A detailed order in this regard has been passed by the learned trial Magistrate on 22.02.2017 which exhibits application of mind. Learned Magistrate has given brief resume of the allegations made in the complaint and recorded that he has applied his mind to the material on record including preliminary evidence and the documents. In these circumstances, order dated 22.02.2017 cannot be termed as mechanical.

The other ground raised by the petitioner that the firm has not been impleaded as a party. The same is also without any merit, for the reason that subject-cheque has been issued by a proprietorship firm and not by a partnership firm. Therefore, impleadment of the firm is not necessary in the facts and circumstance of the case.

For the foregoing reasons, I do not find any merit in the present petition, as such, the same is dismissed.

Copy of this order be sent to learned trial Magistrate for information.