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TMI Blog2020 (9) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... e trial court while considering the matter upon receiving record back from this Court seemingly has erred initially while summoning the petitioner/ accused pursuant to orders dated 09.06.2018, 30.06.2018 and 21.07.2018, however, subsequently corrected the conducting of proceedings upon recording preliminary statement of the respondent/ complainant and upon passing fresh cognizance and summoning order dated 17.12.2018 notwithstanding the earlier summoning of the petitioner herein. The aforesaid errors committed by the trial Court by no sense of imagination could said to be fatal to the entire proceedings, in that, even if same or treated nullity or are set aside the further proceedings subsequently conducted by the trial court would not get affected. Thus, complaining of suffering a prejudice or injustice on this account by the petitioner is insignificant and legally of no consequence. Furthermore the petitioner cannot question the order of cognizance or else proceedings conducted by the trial court after receipt of record back from this court on account of denial of hearing is also legally not sustainable, since hearing of accused at the time of recording of preliminary stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment and order dated 25.05.2019 passed by the Learned Principal Sessions Judge, Jammu whereby the revision petition has been rejected against the judgment and order of Learned Special Mobile Magistrate (Sub-Judge 13 FC) Jammu in File no. 174/complaint on 17.12.2018 where under fresh cognizance has been taken of complaint u/s 138 Negotiable Instrument Act DOI 16.03.2016 which is contrary to the judgement of the Hon'ble High Court of J K in petition 561-A No. 651/2017 holding the cognizance taken of complaint on 16.03.2016 on unsigned affidavit purportedly filed as a preliminary statement bad in law and quashed with further order that permission granted to rectify defect by permitting the placement of the affidavit on 22.4.2017 after the expiry of approximately one year from the date when the court had already issued the process at a subsequent point of time by virtue of order dated 1.7.2017 was totally perverse and impermissible in law thereby quashing the order of cognizance and the proceedings conducted on the basis thereof. For quashment of the order of taking cognizance dated 17.12.2018 by the trial court impugned in the revision petition along with the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, illegal per se. It caused serious prejudice to rights of petitioner to have a fair, legal and proper trial only on a valid complaint and cognizance under a legal order in accordance strictly with CrPC, the procedural law as well as the Negotiable Instruments Act, the substantive law on the subject. c. That fresh cognizance notice under order impugned dated 17.12.2018 was not sustainable when already the accused was brought before the trial court subsequent to order of Hon'ble High Court. He was directed to address arguments on 5.11.2018 and thereafter without affording opportunity of being heard on the maintainability of complaint and its cognizance, the new cognizance order was passed after pushing the accused out of process as if he had not attended the court earlier. It was novel, uncalled for play with the liberties of petitioner which cannot be countenanced in a criminal trial. By pushing the accused back and forth in the proceedings after receipt of file from the Hon'ble High Court, the trial court has committed a great illegality. It vitiated the entire trial conducted by it so far. It caused serious prejudice and denial of justice. d. That the trial co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs Rooplal Jindal Ors reported in 2004, 7 SCC 338. g. That the pending alleged complaint without signature on affidavit in support of complaint as a preliminary statement on affidavit filed on 16.3.2018 thereafter substituted by another affidavit of same copy vide order 22.11.2017 was already held to be bad in law without any authority, perverse and impermissible in law. Emphasis was laid in the judgment on the principles settled by the Hon'ble Supreme Court reported in case of Pepsi Foods Ltd Vs Special Magistrate Ors that summoning of accused in a criminal case is a serious matter and criminal law cannot be set in motion as a matter of course. Non-application of mind by the Magistrate was fatal to the liberties of petitioner who is being repeatedly put to trial. It was hit by the doctrine of double jeopardy as contained in Article 20(2) of Constitution read with sec 403 of CrPC. h. That repeated prosecution of one and the same complaint u/s 138 of Negotiable Instrument Act is not permissible in law. Failure to apply mind to the facts of the case and the order passed the Hon'ble High Court has vitiated the trial. Fresh cognizance order is not permissible. It is hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ques as after settlement of all payments the cheques were retained with malafide intention to harass and humiliate the petitioner without any justifiable cause on the basis of bogus claim and complaint. o. That the allegations made in the complaint do not constitute any offence much less offence under section 420 RPC and section 138 NIA. p. That the matter is of civil nature based on contracts and predominantly a civil dispute of commercial transactions. The complaint has been filed with a malafide intention to cause oppression and prejudice in the trial of consumer complaint against respondent. The quashing of complaint as a whole in the facts and circumstances of the case would sub-serve the interest of justice, fair play and principles of natural justice and good conscience. CRM(M) No. 484/2019 6. The petitioner in the instant petition has sought following reliefs: - Petition u/s 561-A CrPC for quashing the judgement and order dated 25.05.2019 passed by the Learned Principal Sessions Judge, Jammu whereby the revision petition has been rejected against the judgement and order of learned Special Mobile Magistrate (Sub- Judge 13 FC) Jammu in File No. 173/ co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of ₹ 3,70,000/- and payee account cheque bearing No. 080419 dated 27.01.2016 for an amount of ₹ 5,80,000/-, respectively before the trial court, whereupon, the trial court took cognizance and summoned the accused on 16.03.2016. The trial court during the course of proceedings passed two orders dated 01.07.2017 and 14.08.2017 in both the complaints in terms whereof, the complainant was allowed to place on record the original copy of preliminary evidence affidavit attested by Oath Commissioner, as also permitting table amendment in the complaint to show that complaints have been filed by the Company through its Managing Director namely Rajat Chadha. 11.Further perusal of the record reveals that the petitioner herein filed 561-A petitions bearing Nos. 650/2017 and 651/2017 before this court questioning the maintainability of complaints supra, orders of cognizance dated 16.03.2019 as well as above orders dated 01.07.2017 and 14.08.2017 passed therein the said complaints. 12.Further perusal of the record reveals that the said petitions came to be decided by this court on 31.05.2018 quashing the order of cognizance dated 16.03.2019 alone without rendering any decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipt bearing No. RE8559510021N dated 17.02.2016 signifying the issuance of demand notice is also placed on record. Since the notice is stated to have been issued on 17.02.2016 and the person complained against has not made the payment within period of 15 days as provided under clause to proviso of Section 138 Negotiable Instrument Act. Hence, the cause of action accrued to the complainant in terms of section138 NI. Act and the complaint is presented on 16.03.2016. In the backdrop of what has been discussed herein above, I am of the view that prima facie offence u/s 138 Negotiable Instrument Act is made out to compel the appearance of accused. Let the summon be issued to the accused which shall be executed through SHO, Police Station concerned. It shall also be impressed upon the accused in the summon that he can make application for compounding of the offence alleged against him at the first or second hearing of the case. If such an application is made by the accused, the compounding thereof may be allowed by this court without imposing costs upon him. The direction as aforesaid is incorporated in the summons in compliance to the judgement of Hon'ble Supreme Court of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er reliefs which had been prayed therein by the petitioner. 19.What emerges from above is that, the petitioner in the instant petitions in essence has thrown challenge to the maintainability of the complaints supra, proceedings conducted thereon by the trial court including order of cognizance and summoning passed by the trial court dated 17.12.2018,on the grounds which had been essentially urged in earlier 561-A petitions being 650/2017 and 651/2017additionally on the grounds that the trial court erred while passing orders in the complaints w.e.f. 09.06.2018 up to the passing of order dated 17.12.2018, while summoning the accused / petitioner before taking cognizance after receipt of record from this court upon disposal of above 561-A petitions and that the fresh order of cognizance dated 17.12.2018 has been passed against the bar contained in section 142 (1)(b) of NI Act and that the trial court did not provide an opportunity of being heard to the petitioner at the time of passing of cognizance order dated 17.12.2018 resulting into serious prejudice and denial of justice to the petitioner and that the trial court in the process reviewed its earlier orders without there being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the complaint; or (b) **** 21.In the light of the aforesaid legal provisions coupled with Paras 15 and 16 of the Judgment of the Apex Court reported in 2009 (1) SCC 407 titled as National Small Industries Corporation Ltd., vs. State (NCT of Delhi) Ors. it is seen that Section 138 of NI Act mandates that the payee alone whether a corporeal person or an incorporeal person, shall be the complainant. Section 200 of the code contemplates only a corporeal person being a complainant and it requires the examination of the complainant and the sworn statement being signed by the complainant. If section 142 of NI Act and section 200 of the code are read literally, the result will be: (a) the complainant should be the payee of the cheque and (b), the complainant should be examined before issuing process and the complainant's signature should be obtained on the deposition. Therefore, if the payee is a company, an incorporeal body, the said incorporeal body can alone be the company to be represented by an employee or representative on its behalf whereby, the company becomes a dejure complainant and its representative, representing in the criminal proceedings becomes the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard is placed on judgement of this court reported in 2019 (2) JKJ (HC) 36 titled as Manzoor Ahmad Burza Vs. Gulzar Enterprises, wherein at para 22 and 23 following is noticed: - 22. Even otherwise the purpose of providing for a speedier remedy against dishonored cheques would loose its efficacy, in case, the accused were to be heard before taking cognizance of a complaint, for such a course would lead to a full-fledged enquiry before the issue of process, which may frustrate the very purpose for which Section 138 of the Negotiable Instruments Act has been incorporated as penal offence for dishonor of cheques. 23. Not only that, the position in law being settled that an accused is not entitled to hearing before issuance of process, no opportunity of hearing to him at a stage prior thereto may be conceived of. Yet another reason which justifies the above view is that an accused does not come into picture unless the process was issued against him and even after the issuance of process, he has no right to question the legality or otherwise of the process issued by the Court, before the Magistrate, unless the case reaches the stage, where he would be required to enter upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l attached therewith as also pre-summoning statement of the complainant. The trial court validly appears to have proceeded in the matter in tune with chapters XIV (sections 190-199 CrPC) relating to the conditions requisite for initiation of proceedings, chapter XV (section 200-203) relating to complaints to magistrates as also chapter XVI (section 204-205 E) relating to commencement of proceedings before the magistrates. 24.Next while considering the grounds of challenge urged by the petitioner against the proceedings initiated and commenced by the trial court including passing of order dated 17.12.2018 viz. that the trial court proceeded contrary to section 202-204 CrPC in as much as in violation of judgement of Apex Court reported in 2004 (7) SCC 338 is without any substance, in that, the trial court seemingly has not exercised any review powers as is alleged in the petition while recording preliminary statement of the accused and passing of order dated 17.12.2018 after prior erred summoning of the accused / respondent herein, firstly because no such power is contained therein the said provisions and secondly that the trial court corrected conducting of proceedings upon recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.03.2016 after the complainant spelt out specifically therein the accrual of cause of action in his favour for institution of complaints. In law, in filing of complaint under section 138 of NI Act, the date of filing of complaint is the relevant date for considering the question of limitation and not the date of taking cognizance or issuance of process by the court. This court while deciding earlier 561-A petitions did not render any decision on the maintainability of the complaints or else institution and entertaining of the same by the trial court, therefore, the date of filing of the complaints viz 16.03.2016 would be deemed to be the relevant date for considering the question of limitation. The contention of the petitioner in this regard is without any substance and turned down. 27. Lastly while dealing with the objections raised by the learned counsel for the respondent regarding maintainability of the petitions invoking inherent power under section 482 CrPC, by the petitioner, it would be advantageous to refer to The Jantal Dal Vs. H. S. Chowdhary Ors, reported in AIR 1993 SC 892 where under in para 135, it has been noticed as follows: 135. This inherent power con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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