2020 (9) TMI 739 - HC - Indian Laws

Dishonor of Cheque - appellant submits that since the date of service of notice is not mentioned in the complaint so the necessary ingredients for making section 138 of Negotiable Instruments act are lacking - HELD THAT - Although the service of notice is not mentioned in the complaint, on this ground the summoning order could not be quashed. The question as to whether the complaint is premature would be open to be decided by trial court. So in these circumstances, it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. The prayer for quashing the abovesaid summoning order and proceedings is refused - However, it is provided that if the applicant appear and surrender before the court below within 30 days from today and applies for bail, then the bail application of the applicant be considered and decided expeditiously in view of the settled law laid by Hon'ble Supreme Court. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant do not appear before the Court below within the aforesaid period, coercive action shall be taken against him - For a period of 30 days from today, non-bailable warrant issued against the applicant, shall be kept in abeyance. Application disposed off.

Summary

Issues:
1. Quashing of summoning order and proceedings under Sections-138 of Negotiable Instruments Act.
2. Premature complaint and maintainability under the law.
3. Consideration of disputed defense at the stage of summoning order.
4. Right of discharge and proper application under Cr.P.C.
5. Bail application and coercive action against the applicant.

Analysis:
1. The applicant sought to quash the summoning order and proceedings under Sections-138 of the Negotiable Instruments Act. The applicant had issued a dishonored cheque to the complainant, leading to the legal notice and subsequent complaint. The defense argued the absence of the date of service of notice in the complaint, claiming the complaint was premature and not maintainable under the law. However, the court held that the issue of premature complaint could be decided during the trial, and the summoning order could not be quashed solely on this ground. The court emphasized that at this stage, only a prima facie case needed to be considered, citing relevant legal precedents.

2. The defense contended that the complaint was premature due to the absence of the date of service of notice, relying on the General Clauses Act's presumption of a 30-day notice period. The prosecution opposed this argument, stating that technical reasons should not lead to the quashing of the complaint. The court agreed with the prosecution, emphasizing that the question of whether the complaint was premature should be addressed during the trial. The court highlighted that disputed questions of fact could not be adjudicated at this stage and that the accused had the right to seek discharge through a proper application as per Cr.P.C.

3. The court clarified that considerations of the disputed defense of the accused were not relevant at the stage of the summoning order. The court stressed that the accused's defense could be presented during the trial and that the applicant had the right to seek discharge through the appropriate legal procedures. The court referenced various legal cases to support its stance on the limited scope of examination at the summoning stage and the importance of following the procedures laid down by law.

4. The judgment also addressed the applicant's right of discharge under Cr.P.C. and highlighted that the applicant could pursue this right through a proper application before the trial court. The court emphasized that all submissions related to discharge could be made during the application process before the trial court, underscoring the importance of following the prescribed legal procedures.

5. Regarding bail application and coercive action, the court provided specific directions. It stated that if the applicant appeared and surrendered before the court within 30 days and applied for bail, the bail application should be considered and decided expeditiously. The court also ordered that no coercive action should be taken against the applicant for 30 days or until the bail application's disposal, whichever was earlier. However, if the applicant failed to appear within the specified period, coercive action was permitted. Additionally, the court ordered that non-bailable warrants against the applicant would be kept in abeyance for 30 days from the judgment date.