INDRAJIT BHATIA v. STATE OF U P — 1993 DIGILAW 232 (ALL)

KUNDAN SINGH, J. This revision has been preferred against the order dated 29-11-91 whereby the Munsif Magistrate V, Kanpur, has summoned the applicants under Sections 138 and 141 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code, in Case Crime No. 1477 of 1991, to stand their trial. 2. The opposite party No. 2 filed a criminal complaint against the applicants. Applicant No. 5 is a firm known as M/s. S. K. Industries of which applicant Nos. 1 to 4 happen to be the partners. The firm is situate in Sector I, Industrial Area, Parwanco, Himanchal Pradesh. 3. In brief, the complaint allegations are that the applicants entered into a business deal with opposite party No. 2, M/s. Bharat Berg Ltd. Gwaltoli, Kanpur, which on demand by the applicants, supplied certain G. P. / G. C. Sheets but they committed default in payment of price of the goods supplied in spite of several reminders made in that regard. Ultimately, Sri N. K. Mantri, an employee of opposite party firm, was deputed by opposite party No. 2 to approach the applicants and settle the accounts, which were fettled with the applicants on 11-7-91. The applicant Rajesh Bhatia handed over a cheque of Rs, 8,98,178 to Sri N. K. Mantri the same day in of dues under the signature of applicant No 1 That cheque was presented in the Bank at Kanpur on 11-7-91 but it was dishonoured on 22-7-91 with the remark "arrangement exceeds", meaning thereby that the cheque issued was for the amount more than what was available in the account of the applicants. Thereafter notices were sent by this Secretary of the opposite party No. 2 to the applicants on 27-7-91 Applicant No. 1 received that notice "but the notices of other applicants were returned with the endorsement out of station. " The notices were then again sent to them but this time too the same were returned with the remark of the postal department "left without address". Thereupon the opposite party No. 2 filed a criminal complaint in the Court of Munsif Magistrate, Kanpur and in support of that complaint the complainant examined himself under Section 200, Cr. P. C. and Sri R. K. Maheshwari and Sri N. K. Mentri under Section 202, Cr. P. C. 4. Thereupon the opposite party No. 2 filed a criminal complaint in the Court of Munsif Magistrate, Kanpur and in support of that complaint the complainant examined himself under Section 200, Cr. P. C. and Sri R. K. Maheshwari and Sri N. K. Mentri under Section 202, Cr. P. C. 4. The learned Magistrate after perusing the contents of the complaint and the statements of the witnesses recorded under Sections 200 and 202 Cr. P. C. was satisfied that a prima facie case was made out against the accused-appellants and consequently he sumnoned them by the impugned order to stand trial. 5. The learned counsel for the applicants assailed the summoning order on a number of grounds. His first and foremost contention was that a blank Cheque was deposited by the applicants with opposite party No. 2 as security towards the business deal on 26-7-^0, which has been acknowledge by Sri N. K. Mentri by issuing a receipt dated 26-7-90, filed as Annexure 4 to the affidavit, and since the cheque was issued on 26-7-90 and not on 11-7-91, as alleged by the opposite party No. 2, the prosecution was barred by limitation as envisaged in Section 138 of the Negotiable Instruments Act, hance the learned Magistrate had no jurisdiction to take cognizance on the complaint. In my opinion, this contention of the learned counsel has no merit inasmuch as the allegations made in the complaint, supported by the statements record ed under Sections 300 and 202, Cr. P. C. do not show that the cheque was issued on 26-7-90 and not on 11-7-91, the date scribed on the cheque. ID what circumstances the applicants had obtained the receipt of back date and the fact whether it is an authentic document have to be explained and proved by the author of the receipt during the course of trial. All these are matters of evidence to be received by the Magistrate in the trial and on mere ante dated receipt without opportunity to the complainant, the complaint cannot be thrown or rejected at this stage. 6. The next contention of the learned counsel for the applicants was that the cheque was dishonoured at the instance of the applicants themselves, s and not on account of insufficiency of amount in the account. 6. The next contention of the learned counsel for the applicants was that the cheque was dishonoured at the instance of the applicants themselves, s and not on account of insufficiency of amount in the account. In that connec tion he drew my attention to annexure R. A. 1, which is a certificate to issued by the Bank, but that does not show that the amount in the account of the applicants was sufficient to enable the encashment of cheque. 7. The learned counsel then argued that it was incumbent upon the complainant to prove the notices sent to the applicants before passing of the impugned order by the Magistrate, I examined the relevant provisions of law and the allegations made in the complaint in that regard. In the complaint opposite party No. 2 has specifically alleged that the notices were sent to the applicants within the time of Limitation but they were returned by the addressees with the remarks mentioned above. Photostats of the envelopes sent to the applicants Nos. 2 and 3 and copy of the notice in original received by applicant No. 5, were annexed with the complaint. Applicant No. 1 had recieved the notice, and the copy of the notice sent to him also filed with the complaint. The allegations made in the complaint find full corraboration from the statements of the witnesses recorded under Sections 200 and 202, Cr. P. C. and I am at loss to say that I could by not hand on a provision of law which lays down that unless the service of notice on the accused is proved by the complainant, the summoning order cannot be passed. Here the com plainant had tried his best to serve the notices on the accused but for the reasons best known to them applicant Nos. 2 and 3 evaded the service. In the given circumstances if the arguments of the learned counsel is permitted to prevail, then it would be very easy for the accused in such offences to avoid the service of notice and frustrate the prosecution so conveniently, con sequently, this argument too of the learned counsel is rejected as untenable. 8. The next contention of the learned counsel for the applicants was that the complainant has not filed any evidence to prove that the Company had passed any resolution authorising the complainant to file the aforesaid complaint against the applicants. 8. The next contention of the learned counsel for the applicants was that the complainant has not filed any evidence to prove that the Company had passed any resolution authorising the complainant to file the aforesaid complaint against the applicants. I think, at this stage, it was not necessary to annex the resolution with the complaint to show that the complainant was having authority to file the. complaint against the applicants for their prosecution. The stage for filing that evidence would come later on if the question of lack of authority is raised before the Magistrate during trial. At the stage of summoning the accused averments in the complaint, which was supported by the statements of three witnesses, were sufficient to form an opinion by the Magistrate that a prima facie case was made out against the applicants to summon them for standing the trial. It was a matter of satisfaction of the Magistrate and I being a revisionary court would not be justified to substitute my satisfaction in place that of the Magistrate, which any wise does not appear to be erroneous calling for interference by this Court. 9. Thereafter the learned counsel for the applicants assailed the order of the Magistrate on the ground that he has passed the order in a mechancial way without applying his mind to the facts and circumstances of the case and it being a cryptic order is liable to be set aside by this court in its revisional jurisdiction. The parties have exchanged affidavits in this revision enclosing therewith relevant documents including the copies of the statements and the complaint. On a perusal of those documents I am not at all impressed by the submission of the learned counsel for the applicants that the Magistrate has passed the summoning order without applying his mind to the facts and circumstances of the case. At the stage of passing -he summoning order reasons are not necessary to be recorded. If prima facie the Magistrate was satisfied that a case is made out against the applicants and he summoned the accused, how it can be said that it was a case of non-application of mind. Mere satisfaction at the summoning stage was sufficient, which need not be expressed by recording reasons. If prima facie the Magistrate was satisfied that a case is made out against the applicants and he summoned the accused, how it can be said that it was a case of non-application of mind. Mere satisfaction at the summoning stage was sufficient, which need not be expressed by recording reasons. I think, the impugned order is neither cryptic nor a case of non-application of mind and 1 do not feel that a ground is made out for this Court to interfere with the impugned order which otherwise does not suffer from any illegality or improprcity. 10. Then the learned counsel for the applicants challenged the summon ing order on the ground that since the cheque was issued under the signature of applicant No. 1, the offence, if any, was committed by him but the Magis trate has summoned all the partners including applicant No. 5. It is worth while to be mentioned here that partners are none else but father and sons. The cheque was signed by the father and was handed over to N. K. Nantri by the son Rajesh Bhatia, applicant No. 2. At this stage suffice it to say that it is a matter of a evidence as to which of the accused or all of them are guilty of the commission of offence and that issue can be thrashed out after the evi dence of the prosecution is recorded by the Magistrate, I do not want to elaborate myself on this question because still evidence in the case is to be recorded and any expression of opinion now may prejudice either party during the trial. 1. 1. Lastly, the learned |counsel for the applicants argued that the Magistrate lacked territorial jurisdiction as the offence, if any was committed in the State of Bismuthal Pradesh and not at Kanpur. I am afraid to accept this contention of the learned counsel at this stage, which has been raised half heartedly during the course of arguments. Punch a plea of jurisdiction has not been taken in the memo of revision or in the affidavit filed on behalf of the applicants. I am afraid to accept this contention of the learned counsel at this stage, which has been raised half heartedly during the course of arguments. Punch a plea of jurisdiction has not been taken in the memo of revision or in the affidavit filed on behalf of the applicants. It was only because of the averments made in Paragraph No. 5 (VII) of the counter affidavit filed on behalf" of opposite party No. 2 that all disputes are subject to Kanpur Jurisdiction only, that the applicants very mildly alleged in the rejoinder affidavit that Kanpur courts have no jurisdic tion over the matter. No doubt, the question of jurisdiction is a question of law and can be raised at any stage of the proceedings, but since this question has been raised abruptly during the course of arguments, the parties could not place evidence on record of this revision regarding the jurisdiction of the court in the event of a dispute between the parties. Since adjudication of this vital question of jurisdiction cannot be decided at 4his juncture on mere assertions in the counter aad rejoinder affidavits, in the absence of real evidence, which may be in the shape of a covenant, written orders, invoices etc. , 1 refrain myself from expressing any opinion on this point and leave it open to the applicants to raise this question of jurisdiction before the court below itself seized with the trial. 12. For the reasons disclosed above, the revision has no merit and is hereby dismissed in limine. Revision dismissed .