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Judgment
A.P. Bhangale, J.—This Appeal is directed against an order of discharge in favour of the respondent-accused namely; Nishikant Narayan Shastri of offence punishable u/s 138 of the Negotiable Instruments Act. The impugned judgment and order was passed by learned Judicial Magistrate First Class and Special Court u/s 138 of the Negotiable Instruments Act, Nagpur on 22/05/2007 in Misc. Criminal Case No. 2942 of 2005. Heard submissions at the bar.
My attention has been invited to the points for determination in the impugned Judgment, which were framed as under :
(i) Whether the holder of disputed cheque or the person who has to take the amount of the disputed cheque (payee) has filed the complaint u/s 142 of the Negotiable Instruments Act against the accused.
(ii) Whether the complainant has filed his complaint within time. Both the questions were answered in negative.
My attention is also invited to the fact that complaint was instituted by Ajit Manikchand Kotecha, Manager of the Kochar Finance, Nagpur mentioning that the complainant is a Manager and the complaint is being filed through authorized person Shri. A. M. Kotecha, who is holding a Special Power of Attorney from Proprietor of the Company namely; Shri. Gautam Inderchand Kochar. The accusations were that a cheque bearing No. 020841 for Rs. 60,000/-, drawn on The Nagpur Mahila Nagri Sahakari Bank Limited, Dharampeth Branch, Nagpur on 05/07/1994 was presented for collection but it was returned dishonoured with an endorsement "refer to drawer" under bank intimation dated 21/12/1994. Thereafter, it is the case of the complainant that he was given an assurance regarding payment by the accused who executed Hundi on 27/10/1994 in favour of the complainant but the accused had failed to make the payment of complainant''s Finance Company. Therefore, legal notice dated 01/01/1995 u/s 138 of the Negotiable Instruments Act was served to the accused on 10/01/1995. The accused also gave reply to the notice and denied his liability. The question raised on behalf of the accused is; as to whether the complaint was filed by an authorized person in accordance with law and is maintainable u/s 138 of the Negotiable Instruments Act. While on behalf of the complainant question is raised as to whether a fresh cause of action will arise since the accused executed the ''Hundi'' assuring payment based upon Hundi with reference to cheque issued earlier. The complainant had prayed for an action against accused u/s 138 of the Negotiable Instruments Act read with Section 420 of the Indian Penal Code. The impugned judgment and order appears silent in respect of deciding the above questions.
Notwithstanding the fact that there was an affidavit sworn in by Proprietor of Kotecha Finance namely; Shri. Gautamchand Inderchand Kochar and on that basis the deponent was cross-examined. It also appears that one ''Hundi'' was produced, which is at Exh.49, dated 05/04/94 with due date mentioned as 05/07/94.
According to learned Advocate for the complainant, no reference was made to this exhibit and the contentions raised above about the ''Hundi'' executed by the accused were ignored by learned trial Judge.
Learned Advocate for the respondent-accused relies upon ruling in the case of Parashram Vithoba Ubhedal Vs. Rashadbee Rajmohmad Shaikh and Others, , wherein there are guidelines from the Apex Court regarding the complaints lodged by proprietor concerned through the attorney holder. In subsequent ruling in the case of C.G. Praveen Vs. Mohd. Tajuddin and Another, in which ruling in Shankar Finance & Investments (cited supra) was referred and it was held that complaint u/s 138 of the Negotiable instruments Act can be filed by the payee through his Power of Attorney holder. Reference is also made to ruling in the case of Sadanandan Bhadran vs. Madhavan Sunil Kumar reported in 1998(3) Mh.L.J. 365 regarding
maintainability of the complaint as also nature of the cause of action arisen. When offence punishable u/s 138 of the Negotiable Instruments Act is under consideration, the learned trial Magistrate or Special Court concerned ought to address itself on the questions raised by the complainant as also by the accused. Apart from, main points for determination are required to be decided as under :
(i) Whether the cheque was drawn towards payment of an amount for the discharge, in whole or in part, of any debt or other liability.
(ii) Whether the cheque was returned by the bank unpaid due to insufficiency of funds or amount of cheque exceeding amount arranged to be paid from the account.
(iii) Whether the cheque was presented to the bank within period of six months from the date on which it is drawn or within a period of its validity, whichever is earlier.
(iv) Whether payee or holder in due course demanded the payment of amount under cheque by notice in writing to the drawer of the cheque within 30 days of information received from the bank about dishonour of the cheque.
(v) Whether drawer had failed to make payment within 15 days of the receipt of notice.
Learned trial Magistrate is expected to address himself on the above questions including other questions raised by the parties so as to decide the complaint on merits and in accordance with law. In the present case, prima facie there was an error on the part of learned trial Magistrate as only following points for determination were framed.
Whether the holder of disputed cheque or the person who has to take the amount of the disputed cheque has filed the complaint u/s 142 of the N.I. Act against the accused.
Whether the complainant has filed his complaint within time.
Thus, although evidence is led before the learned trial Magistrate by the complainant as well as the accused, it appears that the complaint was not decided on merits and in accordance with law as contemplated u/s 138 of the Negotiable Instruments Act read along with Section 420 of the Indian Penal Code as complainant had sought an action against the accused under both penal provisions.
Under these circumstances, the impugned Judgment and Order of discharge in favour of the respondent-accused is set aside.
The proceedings are remanded back to learned trial Magistrate to hear parties, permit them to lead further evidence, if any, on their behalf and then to decide the complaint in accordance with law.
Trial Court is directed to decide the complaint as early as possible and in any case within a period of six months from the date of this order.
Parties to appear before learned trial Magistrate on 16th August, 2012 at 11:00 A.M.
Criminal Appeal is disposed of in the above terms.