Amit Dua vs Shri Jamil Ahmad
2008 Latest Caselaw 959 Del

  IN THE HIGH COURT OF DELHI AT NEW DELHI



+ Crl.M.C. Nos. 2570/2007, 2573/2007 & 2709/2007
*

Judgment Delivered on: July 07, 2008

Amit Dua ....Petitioner Through: Mr. Sandeep Gupta, Adv.

                          Versus

Shri Jamil Ahmad                       ...Respondent
                          Through: Respondent in person.


CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the reporters of local papers may beallowed to see the judgment? yes

2. Whether the judgment be referred to the reporter or not? yes

3. Whether the judgment should be reported in the digest? yes

Kailash Gambhir, J (Oral)

This order shall dispose of all the three

petitions bearing nos. Crl. M.C. No. 2570/2007

2573/2007 and Crl. M.C. No. 2709/2007 filed by the

same petitioner.

By way of the present petitions moved under

Section 482 Cr. P.C., the petitioner seeks quashing of

criminal proceedings and setting aside of order dated

1.8.2007 passed by the Court of Shri Vipin Kumar Rai,

learned M.M., Karkardooma, Delhi in C.C. Nos. 2237/1,

2238/1 and 2239/1 taking cognizance of offence

punishable under Section 138, N.I. Act, PS Kalyanpuri,

Delhi.

The brief facts common in these petitions are

that the respondent Jamil Ahmed filed three separate

complaint cases against the present petitioner and two

other persons namely, Shri Rajinder Singh and Shri S.K.

Nanda. It is alleged in the complaint filed by him that

all the accused persons including the present petitioner

used to purchase fresh fish on credit basis with an

assurance that they will pay the credit amount within a

period of 15 days against the credit balance of

Rs.26,21,710/-. One of the accused Shri Rajinder Singh

issued and signed the cheques and on the deposit of the

said cheques they were returned by the banker of the

said accused with remarks 'insufficient fund'. A legal

notice was sent by the complainant /respondent and on

the failure of the said accused to come forward to pay

the amount within a stipulated period of 15 days,

complaint Case nos.2237/01, 2238/01 and 2239/1 were

filed by the complainant Jamil Ahmed on the allegation of

non- payment and dishonored of cheques.

In complaint case No. 2239/1 the dishonor of

cheques bearing nos. 251108, 241230, 241233 dated

10.8.02, 27.9.02 and 7.10.02, for Rs.70,000/-, Rs.20,000/-

and Rs.20,000/- respectively are involved while in

complaint case no. 2238/1 the dishonor of cheques

bearing nos. 234450, 234449 dated 25.9.2002 and

28.9.2002 for Rs.50,000/- and Rs.25,000/- respectively

and in complaint case no. 2237/1 the dishonor of cheque

bearing no. 334447 dated 20.9.2002 for Rs.50,000/- form

basis of these complaint cases.

Mr. Jamil Ahmed is present in the Court. He

states that the present petitioner has been wrongly

impleaded by him in the said complaint cases and he

wants to continue with the complaint cases filed by him

only against Mr. Rajinder Singh, who issued and signed

the said cheques.

Counsel for the petitioner urged that in the

complaint cases filed by the respondent, no role has

been assigned to the petitioner and no foundation was

laid so as to show involvement of the petitioner by the

respondent in all the three complaint cases filed by the

respondent. Counsel for the petitioner also submits that

no legal notice as mandatory under the provisions of

Section 138 (b) of Negotiable Instrument Act was sent by

the complainant/respondent to the petitioner and

therefore, no demand whatsoever was raised by the

complainant respondent as against the present

petitioner.

Counsel for the petitioner further submits that

very vaguely in the complaint the complainant

respondent alleged that all the accused persons used to

purchase fresh fish on credit basis and the amount in

question with respect to the said dishonoured cheques

was outstanding against them. The contention of the

counsel for the petitioner is that the allegations made by

the complainant are so unspecific, indefinite and vague

to be taken cognizance of for initiating proceedings

under Section 138 of Negotiable Instruments Act. In

support of his arguments, counsel for the petitioner

placed reliance on the judgment of the Suprepme

Court in S.M.S. Pharmaceuticals Ltd. Vs. Neeeta

Bhalla & Anr., IV (2005) CCR 12 (SC) and judgment

of this Court in Anil Kumar Vs. State & Anr. 137

(2007) DLT 10.

I have heard learned counsel for the petitioner

and perused the record.

All the three complaints were filed by Mr.

Jamil Ahmed against Mr. Rajinder Singh, Mr. Amit Dua

and Mr. S.K. Nanda. In the said three complaint cases

except a bald averment attributing purchase of fresh fish

on credit basis, no other allegation has been made

against the present petitioner with regard to the

issuance of said cheques in question or to show any

liability of the present petitioner for the said debt

against which cheques were issued by Mr. Rajinder

Singh. Perusal of these complaints would further reveal

that all the three complaints are based on the cheques

issued and signed by Mr. Rajinder Singh alone, in whose

account the funds were found insufficient to honour the

amount of the cheques. Even the legal notice was not

served upon the petitioner and the same was only

directed to Mr. Rajinder Singh.

In S.M.S. Pharmaceutical's case (Supra),

the Supreme Court has clearly held that the criminal

liability under Section 138 of the Negotiable Instruments

Act can be fastened only against those who at the time

of the commission of the offence were in-charge and

responsible to the company for the conduct of their

business. Indisputably, the main responsibility is on the

complainant to level sufficient allegations and to lay

foundation in the complainant so as to show as to how

the accused persons are responsible and liable to pay

the amount of the dishonored cheques.

It is settled legal position that at the stage of

issuing process the Magistrate is mainly concerned with

the allegations made in the complaint and he is only to

be prima facie satisfied whether there exists sufficient

grounds for proceeding against the accused. It is not the

province of the Magistrate to enter into a detailed

discussion on merits or demerits of the case at the stage

of issuing process. However, in a case where allegations

made in the complaint or the statement of witnesses

recorded in support of the same taken at their face value

make out absolutely no case against the accused or the

complaint does not prima facie disclose fulfillment of the

basic and essential ingredients of an offence alleged to

have been committed by the accused, the concerned

Magistrate in its discretion can decline issuing process

under Section 204 of the Code of Criminal Procedure.

Perusal of all these complaints clearly show

that no such foundation was laid by the complainant so

as to implicate the present petitioner. Mere bald

statement unsupported by any other averment and

documentary evidence alleging purchase of fresh fish

on credit basis by the petitioner and other persons will

not be suffice for taking cognizance of a complaint

under Section 138 of the Negotiable Instruments Act.

The decision of this court in Anil Kumar's case

(Supra) also supports the said proposition.

In the backdrop of the aforesaid discussion,

the three complaint bearing nos. 2237/01, 2238/01 and

2239/1 and consequential proceedings arising from the

said complaint cases are quashed qua the petitioner.

However, the said complaint cases will continue against

the other persons.

KAILASH GAMBHIR, J July 07, 2008 mg