Mohd. Ibrahim Kuraishi vs State & Anr.
2011 Latest Caselaw 3937 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment decided on: August 12, 2011

+      CRL.M.C.NO. 3477/2010 & CRL.M.A. 17109/2010

       MOHD. IBRAHIM KURAISHI                ....PETITIONER
               Through: Mr. Narender Mukhi, Advocate.

                             Versus

       STATE & ANR.                                 .....RESPONDENTS

                Through:          Mr. Naseem Akhtar with Mr. Rabin
                                  Majumdar & Mr. Sanjib Dutta, Advocates.

                                      WITH

CRL.M.C.NO. 3478/2010 & CRL.M.A. 17111/2010

MOHD. IBRAHIM KURAISHI ....PETITIONER Through: Mr. Narender Mukhi, Advocate.

Versus STATE & ANR. .....RESPONDENTS Through: Mr. Naseem Akhtar with Mr. Rabin Majumdar & Mr. Sanjib Dutta, Advocates.

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. By this order, I propose to dispose of above referred petitions

under Section 482 of the Code of Criminal Procedure between the

same parties involving similar question of law and facts.

2. Briefly stated, facts relevant for the disposal of these petitions

are that the respondent filed two complaints under Section 138 of

the Negotiable Instruments Act (for short `N.I.Act') against the

petitioner, claiming that the petitioner had borrowed a sum of ` 2.50

lakhs from the respondent No.2 for purchasing the land. He issued

two cheques, one being cheque No.302131 dated 30.01.2008 for

`2,10,500/- and other being cheque No. 302135 dated 14.06.2008

for `23,360/- both drawn on State Bank of India, Jwalaheri for

repayment of aforesaid loan. The said cheques, on presentation,

were returned back dishonoured with the remarks "insufficiency of

funds". This led to issue of notice under Section 138 N.I. Act to the

petitioner, calling upon him to pay the amounts of respective

cheques within 15 days of receipt of respective demand notices.

The petitioner failed to make the payment of the amount of either of

those two cheques despite of notice of demand. This led to the

filing of two separate complaints in respect of those cheques.

3. The petitioner, vide these petitions is seeking quashing of both

the complaints on the ground that the averments made in the

complaints do not, prima facie, make out the commission of offence

under Section 138 N.I. Act.

4. Learned counsel for the petitioner has taken me through the

respective complaints which are similarly worded but for the details

of the cheques and dates of presentation of respective cheques as

also the dates of return memos and the dates of the respective

demand notices. It is submitted that on reading of the complaints, it

would be seen that there is no specific allegation in the complaints

that the demand notices were served on the petitioner or that the

petitioner has failed to make payment of the demanded amount

within 15 days of service of demand notices. Learned counsel

contended that from the above, it is apparent that essential

ingredient of offence under Section 138 N.I. Act is lacking in the

averment made in the complaints. Accordingly, the complaints are

liable to be quashed as, prima facie, commission of offence is not

disclosed.

5. Learned counsel for the respondent No.2, on the contrary, has

refuted the arguments and submitted that all necessary ingredients

of offence under Section 138 N.I.Act are disclosed in the respective

complaints. Thus, he has urged for dismissal of the petitions.

6. From the submissions made on behalf of the petitioner, it is

clear that only question for determination in this case is whether or

not, the respective complaints filed by the respondent No.2 under

Section 138 N.I. Act contain the allegations regarding the service of

notices of demand under Section 138 N.I. Act on the petitioner and

that the petitioner failed to comply with the demand notices within

the requisite period. In this regard, Para 10 of the respective

complaints filed under Section 138 N.I. Act which have been worded

similarly is relevant. Para 10 of the complaints in question is

reproduced thus:

"10. Cause of Action arose on 29/07/2008 when the cheque was returned unpaid with the remark "insufficiency of fund". COA continued when the complainant sent a legal notice dated 13/08/2008. COA still continues. Thus the present complaint is within limitation"

7. On reading of Para 10 as reproduced above, it would be seen

that though the allegations in this paragraph are not properly

worded but it clearly conveys that after the dishonour of the

cheques, legal notice dated 13.8.2008 was sent to the petitioner. It

is also averred in the aforesaid paragraph that the cause of action

still continues, which implies that the legal demand notice has not

been complied with. Therefore, it cannot be said that the

averments in the complaints do not disclose, prima facie, the

commission of offence under Section 138 N.I.Act. In my considered

view, the complaints are to be interpreted liberally to see whether

or not said complaints, prima facie, disclose the commission of

offence under Section 138 N.I.Act and it cannot be rejected at the

outset without any enquiry, merely for the reason that the

complaints are not properly worded. The complainant cannot be

made to suffer due to lack of knowledge of language on the part of

his counsel.

8. In view of the discussion above, I do not find any merit in the

above petitions seeking quashing of the complaints.

9. Petitions are accordingly dismissed.

(AJIT BHARIHOKE) JUDGE

AUGUST 12 , 2011 ks