Gulshan Seth vs Addl. Chief Magistrate And ...
2019 Latest Caselaw 2917 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 

 

 
Court No. - 40
 

 
Case :- APPLICATION U/S 482 No. - 12350 of 2004
 

 
Applicant :- Gulshan Seth
 
Opposite Party :- Addl. Chief Magistrate And Another
 
Counsel for Applicant :- Vijaya Prakash
 
Counsel for Opposite Party :- Govt. Advocate,Amit Daga
 

 
Hon'ble J.J. Munir,J.

1. This application under Section 482 Cr.P.C. seeks to quash the entire proceedings of Complaint Case No. 967/2004 'Smt. P.K. Bhatti vs. Gulashan Seth' under Section 138 Negotiable Instruments Act pending in the Court of the learned Additional Chief Judicial Magistrate, Meerut. A summoning order dated 21.06.2004, passed by the Magistrate in the case has also been sought to be set aside.

2. This is an old assigned matter, and despite best efforts made by this Court to secure the presence of the learned counsel for the applicant, he has not appeared on 17.01.2019. The matter was heard with the assistance of Sri Amit Daga, learned counsel appearing on behalf of opposite party no. 2 and Sri Vinod Kant, the learned Additional Advocate General assisted by Sri Akhilesh Kumar Mishra, learned AGA, appearing on behalf of the State. Records of the case were perused and orders reserved.

3. A perusal of the complaint annexed as annexure no. 1 to the affidavit filed in support of the application, shows that the impugned proceedings have arisen in the background of facts that the applicant, who is hereinafter referred to as the 'accused', is a son-in-law to the complainant. The accused borrowed between the months of January, 2002 and December, 2002, on various dates, a sum of Rs. 2,00,000/-, which he did not return. It is alleged in the complaint that the accused in order to liquidate his debt, issued four cheques, three of these being drawn on the State Bank of India, Cantt. Branch, Meerut, bearing cheque no. 750238 dated 30.12.2003 for a sum of Rs. 38,000/-, cheque no. 750233 dated 09.12.2003 for a sum of Rs. 50,000/- and cheque bearing no. 75237 dated 03.01.2004 for a sum of Rs. 40,000/; whereas a fourth cheque was issued by the complainant, drawn on the Bank of Baroda, Belly Bazar Branch, Meerut, bearing no. 183730 dated 16.01.2004 for a sum of Rs. 38,000/-. These cheques were handed over by the accused to the complainant, with an assurance that these would be encashed on presentation.

4. It is said in the complaint that the cheques were presented by the complainant to the Bank, but each of the instruments were returned dishonoured by the Bank through two memoranda of dishonour, dated 17.04.2004 and 29.04.2004. It is the complainant's further case that upon receipt of information about dishonour from the Bank, the complainant caused to be served a notice of demand through registered post dated 30.04.2004 upon the accused, which he received; but, despite receipt of a notice of demand, the accused did not make good his liability regarding proceeds due on the cheques. Accordingly, the present complaint was filed on 15.06.2004.

5. It is apparent that the complaint was filed after expiry of a period of fifteen days from service of the notice of demand, as required by Section 138 (c) of the Negotiable Instruments Act (hereinafter referred to as the 'Act'). Ex facie, the intimation of dishonour about the instruments was received on 17.04.2004 and 29.04.2004, whereas the notice of demand was issued on 30.04.2004, well within the period of 30 days, envisaged under Section 138(b) of the Act.

6. A perusal of the complaint shows that the grievance of the petitioner put forward in the form of a legal objection to the maintainability of the complaint, is two fold. One, that the impugned summoning order has been passed without recording the statement of the complainant under Section 200 Cr.P.C. Apparently, the applicant intends to say that the complainant's statement under Section 200 Cr.P.C. has not been recorded, but the Magistrate has acted on an affidavit of the complainant alone, to take cognizance of the offence. In this connection, it may be mentioned that by virtue of amendment introduced by Act No. 55 of 2002, with effect from 06.02.2003, the provisions of Section 145 have been added to the Act, that read as under:

145. Evidence on affidavit.--

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.

7. The aforesaid provision introduces a special rule as to evidence for the purpose of taking cognizance of a complaint under Section 138 of the Act, which does not require the complainant to be examined on oath. All that is required is an affidavit to enable the Magistrate to proceed with the complaint, which subject to all just exceptions would be readable in evidence in any inquiry, trial or other proceedings, under the Code of Criminal Procedure. The aforesaid provision carries a non obstante clause excluding anything to the contrary provided under the Code of Criminal Procedure, relating to the evidence of the complainant. This Court had occasion to look into the background in which the special provision relating to evidence of the complainant on affidavit, instead of evidence on oath before the Court, under Section 200 Cr.P.C. was substituted by provisions of Section 145 of the Act, in Alok Rajgardia vs. State of U.P. and others 2018(4)ADJ 416, where it was held thus:

"The above provisions were incorporated in the Act aforesaid for the purposes of safeguarding and sustaining the credibility of commercial transactions and to ensure that transactions through this particular Negotiable Instrument, that is, a cheque becomes a dependable way of transacting business. The provision was rigorously used with proliferation of litigation by way of complainants under Section 138 of the said Act. It was felt that the procedure provided under the Code of Criminal Procedure for recording of evidence under Sections 200 and 202 Cr.P.C. obliging a complainant to tender evidence on oath in the dock was not in keeping with the special context of a prosecution under Section 138 Negotiable Instruments Act. It was, therefore, that the Parliament with the object of ensuring that the procedure in a complaint under Section 138 Negotiable Instruments Act becomes less cumbersome, and, pending trials as well as new trials are expedited, introduced the provisions of Section 143 to 147 to the existing Chapter XVII of the said Act."

8. Looking to the aforesaid special provision as to the recording of evidence of the complainant in an inquiry at the summoning stage, the first objection regarding the validity of the procedure adopted by the Magistrate, as set out in the affidavit in support of the application does not hold substance, in the opinion of this Court.

9. The second objection put forward in the affidavit is that there are four cheques involved, each of which give rise to a different cause of action, in support of which a single complaint would not be maintainable. Some issue is sought to be made about specific dates on which the cheques were presented and dishonoured, and by which Bank. This Court apparently finds from the record that there is no such ex facie absence of material particulars about the cheques, the date of their presentation, or receipt of intimation of dishonour, issue of notice of demand and filing of the complaint, all of which are apparent from a perusal of the complaint. If, there are finer issues about evidence regarding these facts, it is not for this Court to go into these in the exercise of powers under Section 482 Cr.P.C. These would, of course, be available as defence to the applicant to be urged at the trial which the Magistrate would go into uninfluenced by anything said in this order. But, this is only a facet of the primary legal objection that a single complaint in support of the four cheques is not maintainable.

10. At this Stage, learned Additional Advocate General Sri Vinod Kant and Sri Amit Daga, learned counsel appearing on behalf of the second opposite party, have invited the attention of this Court to the provisions of Section 219 Cr.P.C. The provisions of Section 219 Cr.P.C. read thus:

219. Three offences of same kind within year may be charged together-

When a person is accused of more offenes than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.

Offences are of the same kind when they are punishable with the same mount of punishment under the same section of the Indian Penal Code (45 of 1800) or of any special or local laws:

Provided that, for the purposes of this section, an offence punishable under Section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as attempt to commit such offence, when such an attempt is an offence.

11. Apparently, the said provision makes it permissible for an accused to be tried at one trial, when he is charged with more offences than one of the same kind committed within the space of twelve months, whether in relation to the same person or not, but the number of such offences is not to exceed three. In case, therefore, dishonour of each cheque is regarded as a separate offence, the offence relating to dishonour of three out of the four cheques under Section 138 of the Act can surely be charged and tried at the same trial. The said question almost on identical facts, arose before the Punjab and Haryana High Court in M/s Kumar Rubber Industries, Kapurthala vs. Sohan Lal 2002 (2) RCR (Crl.)111 , where in paragraphs no. 21, 22, 23, 24 and 25 of the report, it has been held thus:

"21. The learned counsel for the petitioners next contends that the complaint covers four cheques, whreas Section 2019 of the Crimina Procedure Code bars clubbing in a single complaint more than three offences committed within a period of 12 months and, therefore, the complaint is liable to be quashed.

22. Of course, the 1st respondent/complainant has clubbed four cheques in the complaint, bu the learned cousnel for the 1st respondent contends that the complaint cannot be quashed on this ground.

23. The learned counsel for the 1st respondent relied upon a decision of this Court in Anita vs. Anil K. Mehra, 1996 (I)RCR 257, where it was held as follows:-

"Some help can be taken in this regard from the decision of the Supreme Court in the case of State of Andhra Pradesh vs. Kandimala Subbaiah and another, Air 1961 SC 1241. The facts were different but it was observed that where alleged offences had been committed in course of the same transaction, the abovesaid limitation will not apply. A similar argument (had taken) advanced before Delhi High Court in the case of Stalion Shox Pvt. Ltd. Co. and others vs. Auto Tensions (P) Ltd 1994 (1)RCR 3. Therein too it was argued that separate complaint should have been filed with respect to each cheque that was dis-honoured. The learned Single Judge of that Court negatived the plea by holding that no prejudice to caused to the petitioner by filing of one complaint. However, the accused wre permitted to raise these points before the trial court. In fact for purposes of the present order, one is constrained to obsereve that as per the allegations a specific amount was due. Certain post-dated cheques were issued. They wre numbering 9/10 (already mentioned above in individual complaint). It was, therefore, one transaction and to state that there has to be a separate complaint with respect to each cheque that was dis-honoured, will not be correct. Section 219 of the Code of Criminal Procedure, therefore, will not be bar in the peculiar facts of the case. Therefore, this Court has no hesitation in repelling the said arguments."

24. Therefore, the learned counsel for the 1st respondent contends that all these cheques from part of the same transaction, and that being so, a single complaint clubbing all these cheques is maintainable. I agree with the learned counsel for the 1st respondent in this respect. In the present case on hand also, even according to the petitioners, the accounts of the partnership were settled, the retirement deed (Annexure R-4) was executed on 07.06.1996 and post-dated cheques were issued to the 1st respondent who was retiring from the parnership. Therefore all these form part of the same transaction a single complaint clubbing all the four cheques is, therefore, maintainable. So, the complaint cannot be quashed on the ground urged by the petitioners.

25. The learned consel for the 1st respondent further contends that even otherwise the complainant can choose before the trial Court the three cheques with reference to which he want to restrict the prosecution. In this connection, the learned counsel for the 1st respondent refers to the decisions of the Madras High Court in Printo Stick v. H.C. Oswal, 1996 Important and Selected Judgments (Banking) 618 and S. Kiran v. L.C. Corporation, 1994(2) Civil Court Cases 425, which certainly support the contention of the learned counsel for the 1st respondent, that the complainant can choose before the trial Court on which of these cheques he would maintain the prosecution, and that the complaint cannot be quashed on this ground."

12. In the present case, if the four cheques are finally held to be part of the same transaction, though apparently they are, as these have been issued in liquidation of the same debt of Rs. 2,00,000/-, can well entail all the offences being charged and tried together by virtue of Section 220 Cr.P.C. The same would not vitiate proceedings as held in M/s Kumar Rubber Industries, Kapurthala (supra). In the event, it is held by the trial Court that these are not the part of the same transaction, it would be open to the complainant to choose which of these three cheques, she would maintain the prosecution upon. This was precisely the situation in M/s Kumar Rubber Industries, Kapurthala (supra) and it was held there that the complaint is not liable to be quashed on this ground, subject of course to the complainant's right to choose, which of the three cheques she wants to pursue the prosecution about, in case it is held that it did not form part of the same transaction, within the meaning of Section 220 Cr.P.C. The view that a single complaint relating to more than one cheque is maintainable also finds support from a decision of the Karnataka High Court in Tiruchandoor Muruhan Spinning Mills (P) Ltd and others vs. Madanlal Ramkumar Cotton and General Merchants 2000 ILR (Karnataka) 5000 , where in paragraph no. 7 of the report, it has been held:

"7. In so far as the important question raised for consideration in this petition that the provisions of Section 219 of the Criminal Proceudre Code is attracted to the facts of the case is concerned, it is contended that cause of action for the complainant arose only afer service of notice to the accused. It is pointed out that the complainant has issued a single notice calling upon the accused by way of demand to pay the cheque amount within 15 days from the date of service of notice and the accused failed to pay the cheque amount within the time stipulated under Section 138)b) of the Act and, therefore, the complainant filed a complaint within one month from the date of service of notice which is well within time. There is o bar for lodging a complaint for initiation of action under Section 138 of the Negotiable Instruments Act as the accused committed the offence punishable under Section 138 of the Negotiable Instruments Act. In fact it is not to his disadvantage but it is an advantage that a single complaint is lodged against the accused by the complainant. The cause of action giving rise to a complaint is upon the service of notice contemplated under Section 138 (b) of the Negotiable Instruments Act and not upon the dishonour of the cheque and, therefore, the contention canvassed by the learned counsel for the respondent that the provisions of Section 219 of the Criminal Proceudre Code are not applicable to the proceedings under Section 138 of the Negotiable Instruments Act has to be accepted."

13. Here, the reasoning is that the cause of action is the single notice and not the various cheques in relation to which the notice of demand is issued.

14. The inevitable conclusion, therefore, is that a complaint as framed is maintainable and will be tried. However, in case, on hearing the accused, the learned Magistrate finds that the case does not arise from the same transaction within the meaning of Section 220 Cr.P.C., the Magistrate will give opportunity to the complainant to choose which out of the three cheques she wants to pursue this prosecution about, leaving her free to proceed in respect of the fourth instrument, separately. In the event it is found to be part of the same transaction, it can be charged and tried at the same trial for all the four instruments. This decision has to be taken by the Magistrate at the stage of framing of charges. In any event, no case is made out to quash the impugned proceedings under Section 482 Cr.P.C.

15. In the result, this Application fails and is dismissed. The interim order dated 23.11.20114 is hereby vacated.

16. Let this order be communicated to the learned Additional Chief Judicial Magistrate concerned through the learned Sessions Judge, Meerut by the office within a week.

Order Date :- 15.4.2019

Deepak