9911796707
TMI Blog2021 (4) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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. 8) Heard learned counsel for the parties and perused the record. 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 compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint 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: 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 puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Section 138. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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