Jammu & Kashmir High Court
M/S Surya Motor Finance vs Santosh Kumari on 7 February, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
250
HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT JAMMU
Crl R No. 41/2021
M/s Surya Motor Finance .....Petitioner
Corporation Vijaypur, through
Managing Partner Yash Raj
Choudhary, age 60 years, S/o. Tara
Chand, R/o. Vijaypur
Through: Mr. Kapil Sharma, Adv.
Vs
Santosh Kumari, W/o. Lt. Sh. Ashutosh ..... Respondent
Sharma
Prop. M/s. Balotra Filling Station, Bharat
Petroleum Corporation, Shiv Nagar
College Road, Kathua
Through: None.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
07.02.2024
1. The petitioner has filed the instant revision petition against order dated
21.09.2021 passed by the learned Chief Judicial Magistrate, Samba,
whereby the learned Magistrate has, while refusing to rely upon the
affidavits of the respondent admitting her liability in respect of the
cheque amount that is subject matter of the complaint under Section 138
Negotiable Instruments Act filed against her, directed recording of plea
of the respondent-accused under section 242 of J&K Cr.P.C.
2. It appears that the petitioner has filed a complaint under section 138 NI
Act against the respondent in respect of a cheque amounting to Rs.
5,25,000/-, issued by the respondent in favour of the petitioner, which is
stated to have been dishonored by the banker on account of
insufficiency of funds. As per the complaint, despite service of the
notice of demand upon the respondent, she failed to pay the cheque
amount to the petitioner within the stipulated time, which compelled the
petitioner to file the complaint before the learned Magistrate.
3. It seems that during pendency of the complaint, some negotiations took
place between the parties for amicable settlement of the case and during
the course of the negotiations, the respondent/accused is stated to have
sworn an affidavit dated 21.05.2019, whereby she has admitted having
availed loan from the complainant and having issued the cheque which
is subject matter of the complaint. As per the contents of the said
affidavit, the respondent/accused had undertaken to repay the whole
amount within two months. Another affidavit dated 10.01.2020 on
similar lines has been sworn by the respondent/accused and produced
before the learned Magistrate along with an application dated
10.01.2020.
4. The record further shows that on the basis of the aforesaid documents
produced by the respondent/accused before the trial Magistrate, the
petitioner/complainant raised a contention before the learned Magistrate
that there is no need to record the plea of the respondent/accused under
Section 242 of the J&K Cr.P.C, because from a perusal of the affidavits
placed on record by the respondent/accused, it is clear that she has
pleaded guilty to the offence and as such, she deserves to be dealt with
in accordance with the provisions contained in Section 243 of the J&K
Cr.P.C.
5. The learned trial Magistrate vide the impugned order rejected the
contention of the petitioner/complainant and proceeded to record the
plea of the respondent/accused in terms of Section 242 of the J&K
Cr.P.C. It is this order, which is under challenge before this Court in
the present proceedings.
6. I have heard learned counsel for the petitioner and perused the record
of the trial court and the grounds of challenge urged in the instant
revision petition.
7. It has been contended by the learned counsel for the petitioner that the
order impugned passed by the trial Magistrate is patently erroneous as
there was an unequivocal admission of the guilt by the
respondent/accused by way of as many as two affidavits and the
application submitted by her before the trial Magistrate. Therefore, the
respondent was required to be dealt with in accordance with the
provisions contained in Section 243 of the J&K Cr.P.C. and to record
conviction against her. Learned counsel for the petitioner in support of
his contention has relied upon the ratio laid down by this Court in the
case of Abdul Majeed Sheikh vs Abdul Rashid Banday, 2018 (1)
JKJ 75.
8. In order to determine the merits of the contention raised by learned
counsel for the petitioner, it would be apt to refer to the provisions
contained in Sections 242 and 243 of the J&K Cr.P.C, which read as
under:
"242. Substance of accusation to be stated.--When the accused
appears or is brought before the Magistrate, the particulars of the
offence of which he is accused shall be stated to him, and he
shall be asked if he has any cause to show why he should not be
convicted; but it .shall not be necessary to frame a formal
charge.
243. Conviction on admission of truth of accusation.--If the
accused admits that he has committed the offence of which he is
accused, his admission shall be recorded as nearly as possible in
the words used by him; and if he shows no sufficient cause why
he should not be convicted, the Magistrate may convict him
accordingly."
9. From a perusal of the aforesaid provisions, it is clear that in a summons
trial case when an accused appears before the Magistrate, the particulars
of the offence of which he is accused have to be stated to him and he
has to be asked if he has any cause to show, as to why he should not be
convicted. In case the accused admits that he has committed the offence
of which he is accused, his admission has to be recorded as nearly as
possible in the words used by him. After undertaking such an exercise,
if the Magistrate feels that the accused has been unable to show
sufficient cause, he has to be convicted of the offence.
10. The aforesaid provisions came up for discussion before the Supreme
Court in the case of Mahant Kaushalya Das v State of Madras, AIR
1996 SC 22. The Supreme Court, while considering the validity of
confession recorded by a Magistrate under Section 243 of the Cr.P.C.
observed as under:
"6. .........It is manifest from the record that the admission of
the appellant has not been recorded "as nearly as possible in the
words used by him", as required by section 243 of the Criminal
Procedure Code. It is true that in the judgment dated March 22,
1963 the Magistrate has said that the appellant "pleads guilty",
but the record contains no indication whatsoever as to what
exactly the appellant admitted before the Magistrate. In our
opinion, the requirements of section 243 of the Criminal
Procedure Code are mandatory in character and a violation of
these provisions vitiates the trial and renders the conviction
legally invalid. The requirement of the section is not a mere
empty formality but is a matter of substance intended to secure
proper administration of justice. It is important that the terms of
the section are strictly complied with because the right of appeal
of the accused depends upon the circumstance whether lie
pleaded guilty or not and it is for this reason that the legislature
requires that the exact words used by the accused in his plea of
guilty should, as nearly as possible, be recorded in his own
language in order to prevent any mistake or misapprehension. It
has been held by the Madras High Court in Queen Empress v.
Erugadu(1) that the violation of the procedure in section 243 of
the Criminal Procedure Code was sufficiently serious to
invalidate the conviction of the accused. The same view has
been taken by the Calcutta High Court in Shailabala Dasee v.
Emperor(2) and by the Allahabad High Court in Mukandi Lai v.
Stale(3). In our opinion, these cases correctly lay down the law
on the point."
11. From a perusal of the aforesaid ratio laid down by the Supreme Court, It
is clear that requirements of the provisions contained in Section 243
Cr.P.C. are mandatory in character and a violation of these provisions
vitiates the trial and renders the conviction invalid. It is for this reason
that in Section 243 Cr.P.C, it has been specifically provided that
admission of an accused has to be recorded as nearly as possible in his
own words and he should be convicted only if he fails to show a
sufficient cause and as per Section 242 of Cr.P.C, the particulars of
offence of which a person is accused, have to be stated to him and he
should be asked as to why he should not be convicted. Guilty plea is
grave and solemn act to be accepted only with care and discernment.
This is so because it is a waiver of right of the accused to defend a case
and his consent to suffer a judgment of conviction without trial. In a
way an accused in such eventuality, stands as a witness against himself.
Therefore, the Magistrate has to ensure that plea of guilt is not only
voluntary but the accused must be having sufficient awareness about the
circumstances of the case as also the consequences of pleading guilty.
12. Coming to the facts of the instant case, the petitioner desires from the
learned Magistrate to record conviction of the respondent on the basis
of the affidavits sworn by her before a Judicial Magistrate , wherein she
has admitted that she has availed loan facility from the complainant and
has drawn the cheque in favour of the complainant with an undertaking
to repay the amount within a specified time. Firstly, these affidavits
have not been sworn by the respondent before the trial Magistrate but
the same have been sworn before some other Magistrate. Secondly, it is
an admitted fact that the learned Magistrate has not at any point of time
made the respondent/accused aware about the allegations levelled
against her in the complaint nor has she been cautioned by the trial
Magistrate about the consequences of her pleading guilty. If that is the
case, filing of the affidavits and the application by the
respondent/accused before the trial Magistrate cannot be equated with
recording of plea of guilt of the respondent under Section 243 of the
Cr.P.C. as the same does not fulfill the requirements of the said
provision.
13. Apart from the above, what the respondent has admitted in the
affidavits and the application is issuance of the cheque and availing the
loan facility from the complainant/petitioner. She has nowhere admitted
receipt of the notice of demand from the complainant. The receipt of
demand of notice and nonpayment of the cheque amount within the
stipulated time thereafter, is an essential ingredient for constituting an
offence under Section 138 of the Negotiable Instruments Act. Unless
the allegations regarding this essential ingredients of offence of 138 of
the Negotiable Instruments Act, are admitted by the accused, he/she
cannot be convicted of the said offence. Therefore, even if for the sake
of arguments, it is assumed that the affidavits and the application filed
by the accused/respondent before the trial Magistrate deserves to be
taken into consideration for the purpose of recording the plea of
accused, still then, the same do not establish all the ingredients of
offence under Section 138 Negotiable Instruments Act against the
respondent. These affidavits as well as the application at best can be
treated as evidence of admission of availing of the loan amount and the
issuance of the cheque on the part of the respondent/accused, regarding
which, she would be obliged to tender an explanation during trial of the
case, but in no case the same can take the place of a plea under Section
243 Cr.P.C. The contention of the petitioner, therefore, is without any
substance.
14. For the foregoing reasons, I do not find any ground to interfere with the
impugned order passed by the learned Magistrate. The petition lacks
merit and is dismissed accordingly. The trial Magistrate shall proceed
further in the matter in accordance with the law. A copy of this order be
sent to the trial court.
(SANJAY DHAR)
JUDGE
Jammu
07.02.2024
Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
