Subhash Chander Goyal vs Siri Pal Jain

J.B. Garg, J.—Subhash Chander Goyal, a partner of Cambridge Woollen Mills, Industrial Area-A, Ludhiana, has challenged the summoning order dated September 18, 1989, in a complaint u/s 138 of the Negotiable Instruments Act passed by Shri Hukam Chand, Judicial Magistrate, First Class, Ludhiana.

It has been alleged in the present petition that the requirement of Section 138, read with Section 142, of the Negotiable Instruments Act, 1881, was not fulfilled inasmuch as no notice was served within 15 days of the dishonouring of the cheques in question ; that whatever notices were issued were also vague ; that the notice was issued by Oswal Woollen Mills Ltd., Industrial Area-A, Ludhiana, whereas the complaint has been filed on behalf of Oswal Woollen Mills, G. T. Road, Sherpur, Ludhiana PS Focal Point, Ludhiana, that even the name of the petitioner was wrongly mentioned in the complaint.

Learned counsel for the petitioner has referred to para 5 of the complaint which is reproduced as under :

"That the accused was requested to make the payment of the balance sale price of the goods purchased by the accused from the complainant, the accused gave cheque No. 533962, dated March 18, 1989, for Rs. 1,50,000 drawn on the State Bank of India, Ludhiana. However, the said cheque was dishonoured and the accused issued another cheque No. 353853, dated May 7, 1989, for Rs. 1,50,000. The accused again issued a cheque No. 353854, dated May 9, 1989, for Rs. 1,84,871.35 drawn on the State Bank of India, Ludhiana. The third cheque, bearing No. 353846 for Rs. 1,77,922.12, dated May 4, 1988, was also issued, drawn on the State Bank of India, Ludhiana. At the time of issuing these cheques the accused assured the complainant that these cheques will be honoured on presentation to the bank."

It was argued by learned counsel for the petitioner that neither in para No. 5 nor in any of the remaining three concluding paragraphs it has been mentioned as to on what date a particular cheque was dishonoured and on what date the required notice u/s 138 of the Act was ever issued. In para 6 of an affidavit of the petitioner attached with the petition there is a specific mention that cheque No. 610427, dated April 3, 1989, was presented on May 2, 1989, in Allahabad Bank whereas the alleged legal notice was served on the petitioner on July 17, 1989, or, in other words, after more than two months. Similarly, the petitioner has given the details of other cheques which were presented and dishonoured and the notices were served on the petitioner after two months. The complainant has not contradicted these pleas by filing any reply in any form much less by a counter-affidavit though opportunity was given to him for this purpose and a specific query was also put to learned counsel for the respondent and he simply expressed the inability of his client to do the needful. Neither the complaint nor the statement of the complainant, copy of which is annexure P-3, contains the requirements as to what was the date of dishonouring of the cheques and on what dates the notices were sent by the complainant regarding the return of the cheques as unpaid. Where such an important question of fact is not repudiated by filing a counter-affidavit it may not be fair to place the petitioner under trial. In Rajiv Kumar Vs. State of U.P., referred to by learned counsel for the petitioner, it was observed that in order to fasten a criminal liability on a person, the requirement of law has to be fully complied with. Here, in the present case, by not filing a reply and a counter-affidavit, it is obvious that the complainant is trying to conceal material facts and prima facie the impugned order cannot be sustained.

Learned counsel for the respondent has referred to Revinder Singh v. State of Punjab [1982] 84 PLR 68, in which it was observed that where there was a provision of revision it was not competent to invoke the inherent power of the High Court u/s 482 of the Code of Criminal Procedure. In the aforesaid case, a complaint for an offence u/s 307, read with Section 34, of the Indian Penal Code was withdrawn inasmuch as there was an assurance by the Deputy Inspector General of Police, that justice shall be done to the complainant and it was in these circumstances that the complaint was withdrawn and the Judicial Magistrate entertained the second complaint. As the first complaint was dismissed as withdrawn before the Judicial Magistrate could have applied his mind, as was observed, this authority cannot be considered helpful to the complainant.

In view of the reasons given above, the present petition succeeds and the complaint as well as the summoning order in question are hereby quashed.