Mohammad Shafi Mir vs Haji Bashir Ahmad Dar & Another
2021 Latest Caselaw 431 j&K/2

                                IN THE HIGH COURT OF JAMMU AND KASHMIR
                                              AT SRINAGAR
                                              (THROUGH VIRTUAL MODE)

                                                                    Reserved on: 07.04.2021
                                                                    Pronounced on:15 .04.2021

                                                 CRMC No.118/2018

                        Mohammad Shafi Mir                                       ...Petitioner(s)
                                     Through: - Mr. N. H. Shah, Sr. Advocate, with Mr.
                                                  Gulzar Ahmad, Advocate.

                        Vs.

                        Haji Bashir Ahmad Dar & another                       ...Respondent(s)

                                     Through: - Mr. Shafqat Nazir, Advocate.


                        CORAM:       HON‟BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.


                                                  JUDGEMENT

1) This is a petition by the petitioner filed under Section 561-A of

the Jammu & Kashmir Code of Criminal Procedure (now repealed) for

seeking quashment of order dated 28th of February, 2018 (impugned

order) passed by learned District Mobile Magistrate, Sopore ("the trial

court") in a complaint tilted Haji Bashir Ahmad Dar & another vs.

Mohammad Shafi Mir‟. The impugned order, which has been passed in

a complaint filed by the respondents jointly under Section 138 read

with Section 142 of the Negotiable Instruments Act, is assailed on the

solitary ground that Section 138 read with Section 142 of the

aforesaid Act does not envisage a joint complaint by two complainants

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and, therefore, the complaint and all subsequent proceedings thereon

are vitiated in law.

2) With a view to address this question of seminal importance that

has arisen in this petition, it would be necessary to first notice few

material facts.

3) The respondents have filed a joint complaint against the

petitioner before the trial court on the allegation that the petitioner

owed an amount of Rs.2,50,000/ to the respondents as consideration

for purchasing the land of the respondents and with a view to discharge

the liability, the petitioner issued four cheques to the respondents, three

cheques for an amount of Rs.50,000/ each and one cheque for

Rs.1,00,000/ on account No.3165156346 maintained by the petitioner

with Central Bank of India, Branch office Main Chowk, Sopore. It is

claimed that the said cheques when presented by the respondents before

the concerned Bank were returned with the endorsement "funds

insufficient". After the cheques were bounced by the concerned Bank,

the respondents claim to have requested the petitioner to pay the

amount of cheques which had remained un-encashed for want of

sufficient funds in the account of the petitioner. The petitioner,

however, did not pay any heed to the request of the respondents. The

respondents served a common legal notice dated 7 th of July, 2014,

requesting the petitioner to pay the amount mentioned in the cheques

within 15 days of the receipt of notice but the petitioner chose not to

liquidate the amount. Having faced with the refusal by the petitioner to MOHAMMAD ALTAF BHAT 2021.04.15 17:01 I attest to the accuracy and integrity of this document

pay the cheque amount, the respondents joined hands to file a

complaint before the trial court, from where the impugned order has

arisen.

4) The impugned order has arisen out of an application moved by

the petitioner for dismissal of the complaint on the ground that a joint

complaint by the respondents was not maintainable. The application

was objected to by the respondents.

5) The trial court considered the rival contentions and dismissed the

application of the petitioner without returning any finding as to the

maintainability of joint complaint under Section 138 read with Section

142 of the Negotiable Instruments Act. The application was dismissed

on the ground that the trial court after having taken cognizance of the

complaint was bereft of jurisdiction to review its order. Reliance was

placed on the judgment of the Supreme Court in Adalat Prasad v. Roop

Lal Jindal & Ors., (2004) 7 SCC 338 and Subramanium Sethuraman vs.

State of Maharashtra, AIR 2004 SC 4711. It is this order, which is

assailed by the petitioner in this petition.

6) It is vehemently contended by Mr. N. H. Shah, learned senior

counsel appearing for the petitioner, that neither under Section 200 of

the Code of Criminal Procedure nor under Section 138 read with

Section 142 of the Negotiable Instruments Act, a joint complaint is

envisaged. He argues that in the instant case, though the respondents

claim that there was joint liability towards them to be discharged by the

MOHAMMAD ALTAF BHAT 2021.04.15 17:01 petitioner yet the petitioner had issued three cheques in favour and in I attest to the accuracy and integrity of this document

the name of respondent No.1 and one cheque of Rs.50,000/ in the name

of respondent No.2 and, therefore, a joint notice issued by the

respondents through their counsel, Mr. Musadiq Mohammad Shora,

was not permissible in law. Reliance is placed on the following Single

Bench judgments:

i) Parijanashram Swamiji vs. Kailaje, ILR 1986 Kar. 417 (Karnataka High Court);

ii) Thethavusamy vs. Radhakrishnan, 2006 SCC Online Mad. 722 (Madras High Court);

iii) Maheswari & others vs. Jayanthi & another, 2011 (3) MWN (Cr.) 319 (Madras High Court;

iv) Haridas Naik and Ors. vs. Hanchinamane Gadriyappa and Ors, 2010 Cri.L.J. 3634.

7) Per contra, Mr. Shafqat Nazir, learned counsel appearing for the

respondents, submits that in the absence of specific bar under Section

138 read with Section 142 of the Negotiable Instruments Act, a joint

complaint by two or more persons is maintainable, more so when the

bounce cheques have been issued by the accused to discharge a joint

liability towards the complainants. He argues that the judgments relied

upon by Mr. N. H. Shah pertain to the complaint under Section 200 of

the Code of Criminal Procedure and Chapter XVII of the Negotiable

Instruments Act is an independent and complete Code itself and is,

therefore, not controlled or regulated by the general provisions of the

Code of Criminal Procedure. This is how the learned counsel

distinguishes the judgments cited at Bar by Mr. N. H. Shah in support

of his contention.

MOHAMMAD ALTAF BHAT 2021.04.15 17:01

8) Heard learned counsel for the parties and perused the record. I attest to the accuracy and integrity of this document

9) As noted above, the only question that arises for consideration in

this petition is whether a joint complaint under Section 138 read with

Section 142 of the Negotiable Instruments Act ("the Act" for short) is

maintainable. The judgments cited by Mr. N. H. Shah do point out that

a joint complaint by two persons in respect of one and the same offence

is not maintainable under Section 200 of the Code of Criminal

Procedure.

10) In the judgment rendered by the Madras High Court in the case

of Maheswari (supra), the view taken by the Court is summed up in

para 14, which reads thus:

"14. Section 200 of the Criminal Procedure Code contemplates examination of the Complainant. A Magistrate taking cognizance of an offence on Complaint shall examine on oath the Complainant. If there is more than one complaint, it will be difficult for the Magistrate to form an opinion for taking cognizance of an offence. This applies to the Power of attorney of two Complaints also. Therefore, the joint Complaint given by two persons is not maintainable and liable to be quashed."

11) To the similar effect is an earlier judgment of the Madras High

Court in the case of „Narayanaswami and others v. Egappa Reddi and

others, 1962 SCC Online Mad. 45. In paragraph 2 of the judgment, a

Single Bench has dealt with the issue in the following manner:

".....Under Section 233 Crl. P. C, for each distinct offence of which any person is accused, there should be a separate charge and the exceptions are contained in the subsequent sections. There is no provision in the said sections dealing with joinder of charges authorizing two or more complainants to MOHAMMAD ALTAF BHAT 2021.04.15 17:01 file a single complaint. If the authors of the Code I attest to the accuracy and integrity of this document

of Criminal Procedure contemplated such filing of joint complaints, they would have clearly made provision to them corresponding to Order 1 Rule 1 CPC, providing for joinder of plaintiffs in civil suits. On the other hand, provisions like S. 247 Cr. P. C in summons case and S. 259 Cr. L. P. C. in warrant case as to the powers of the Court to dismiss a complaint in the absence of the complainant clearly indicate that a complaint could be filed by only one person. Therefore, a joint complaint by two persons is not contemplated by the Criminal Procedure Code and separate petitions or complaints should be filed.

12) This has been followed by Karnataka High Court in the case of

Parijanashram Swamiji (supra).

13) In the later judgment, the Madras High Court in the case of

Thethavusamy (supra), reiterated the view earlier taken by the High

Court in Narayanaswami‟s case (supra)

14) From the legal position enunciated by various High Courts in

reference to Section 200 of Cr. P. C, a joint complaint by two or more

person against an accused is clearly not maintainable.

15) The legal position, as taken note of hereinabove, may not be

sufficient enough to adjudicate upon the controversy raised in the

instant petition. The question still remains as to whether what is held by

various High Courts with reference to Section 200 of Cr. P. C is

applicable to the complaints filed under Chapter XVII of the Act.

16) It would be profitable to extract Sections 138, 141, 142 and 143

of the Act in extenso:

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138. Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 8 [a term which may be extended to two years‟], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, 9 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.

141. Offences by companies.--(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:

Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under MOHAMMAD ALTAF BHAT 2021.04.15 17:01 I attest to the accuracy and this Chapter.

integrity of this document

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.--For the purposes of this section, --

(a) "company" means anybody corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm.

142. Cognizance of offences.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:

Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.

(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,--

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation.--For the purposes of clause (a), where a MOHAMMAD ALTAF BHAT cheque is delivered for collection at any branch of the bank 2021.04.15 17:01 I attest to the accuracy and integrity of this document

of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.

143. Power of Court to try cases summarily.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:

Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.

(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.

17) The reference to the complainant as a "person" in Section 138 of

the Act, prima facie, indicates that Section 138 too envisages a

complaint by a single person. Similarly, if we look at the provisions of

Section 141 of the Act, which pertains to the offences by the

companies, it also refers to a "person" committing an offence under

MOHAMMAD ALTAF BHAT 2021.04.15 17:01 Section 138.

I attest to the accuracy and integrity of this document

18) Section 142, which lays down the procedure as to how the

cognizance in a complaint filed under Section 138 of the Act is to be

taken by the Court, also speaks of a complaint and not the complaints

which would also indicate that it envisages only one complainant in a

complaint and, therefore, rules out filing of a joint complaint by two or

more than two persons.

19) As is provided under Section 143 of the Act, the cases under

Section 138 of the Act are required to be tried summarily by following

the procedure laid down under the provisions of Sections 262 to 265 of

the Code of Criminal Procedure. It is only when at the commencement

of, or in the course of, a summary trial, it appears to the Magistrate that

the nature of the case is such that a sentence of imprisonment for a

term exceeding one year may have to be passed or that it is, for any

other reason, undesirable to try the case summarily, the Magistrate shall

after hearing the parties, record an order to that effect and thereafter

recall any witness that may have been examined and proceeded to hear

or rehear the case in the manner provided by the Criminal Procedure

Code. It is, thus, not correct to say that Chapter XVII is a complete

Code in itself and exclude the applicability of the Criminal Procedure

Code. In that view of the matter, I am not impressed with the argument

of Mr. Shafqat Nazir that the legal position and the law cited by Mr. N.

H. Shah, would only be applicable to the complaints under Section 200

of the Code of Criminal Procedure and would have no application even

by analogy to the complaints under Section 138 of the Act. A conjoint MOHAMMAD ALTAF BHAT 2021.04.15 17:01 I attest to the accuracy and integrity of this document

reading of Sections 138, 141, 142 and 143 of the Act, undoubtedly,

point towards one conclusion that even under Chapter XVII of the Act,

a joint complaint by two or more persons against an accused is not

maintainable.

20) Having held thus, I am not in agreement with Mr. N. H. Shah

that the joint complaint filed by the respondents is completely vitiated

in law and, therefore, deserves to be quashed. The complaint, which is

still pending adjudication before the trial court, can still continue for

and on behalf of one of the two complainants and the other complainant

can be asked to chose his remedy separately as may be permissible in

law. In the view I have taken, I am supported by a Single Bench

judgment of Karnataka High Court rendered in the case of Haridas Naik

and Ors. vs. Hanchinamane Gadriyappa and Ors, 2010 Cri.L.J. 3634. The

observations of the Karnataka High Court in the aforesaid case decided

under similar set of circumstances are noteworthy and are reproduced

hereunder:

".....Therefore, respectfully agreeing with the view taken by the High Courts of Madras and Punjab and Haryana in the cases referred to supra, I am of the considered opinion that though the complaint in the instant case is filed by two persons jointly, all further proceedings pursuant thereto cannot be quashed on the ground only that a joint complaint is not envisaged under the Code of Criminal Procedure. The complainants deserve an opportunity to choose as to who of them would continue to prosecute the said complaint as complainant."

21) In view of the aforesaid, this petition is allowed in part and the

impugned complaint and the proceedings taken thereon, in so far as MOHAMMAD ALTAF BHAT 2021.04.15 17:01 I attest to the accuracy and integrity of this document

respondent No.2 is concerned, shall stand quashed. The complaint

shall, however, proceed in so far as respondent No.1 is concerned. It is

made clear that passing of this order and the quashing of the complaint,

in so far as respondent No.2 is concerned, shall not come in his way to

file a complaint after following due process of law afresh.

22) I have deliberately chosen not to give option to the respondents

as the complaint filed by respondent No.1 pertains to three cheques

worth Rs.2.00 laces (rupees two lacs) whereas the complaint filed by

the respondent No.2 pertains to a single cheque worth Rs.50,000(rupees

fifty thousand) only. Any disagreement between the two may inure to

the benefit of petitioner.

                        23)    No order as to costs.


                        24)    Copy of this judgment along with trial court record be sent to the

                        learned trial court.




                                                                          (Sanjeev Kumar)
                                                                                    Judge
                        Srinagar
                        15.04.2021
                        "Bhat Altaf, PS"
                                               Whether the order is speaking: Yes/No.

Whether the order is reportable: Yes/No.

MOHAMMAD ALTAF BHAT 2021.04.15 17:01 I attest to the accuracy and integrity of this document