Swaroop Vegetables v. Vindhya Soya. Ltd. — 1994 DIGILAW 816 (MP)

JUDGMENT This is a revision filed by the accused against whom a private complaint was filed u/s. 420 I.P.C. and section-138 of the Negotiable Instruments Act (hereinafter referred to as the Act), challenging taking cognizance of the offence by the learned Judicial Magistrate of First Class, Hoshangabad by his order dated 9.10.1911 in Cr. Case No. 141/1991. The learned counsel for the applicant vehemently argued that the order of the learned Magistrate does not disclose the date of the cheque, the amount for which the cheque was issued, the date on which the cause of action has arisen and hence such a cryptic order is liable to be set-aside. The learned counsel for the non-applicant complainant on the other hand submitted that the applicant has issued a cheque for Rs. 3,08,275=00 on 14th Febru;uy, 1991, that when the cheque was presented to the Central Bank of India, Hoshangabad Branch it was returned on 30.3.1991 with the endorsement 'referred to drawer', that thereupon the non-applicant gave a notice to the applicant, as required under section 138 proviso (b) of the Act demanding payment of the amount covered by the cheque and that having waited for 15 days after issue of the notice and as there was no reply from the applicant, the complaint was riled on 23.5.1991, within one month from the date of the accrual of cause of action. The fact of the non-applicant having issued a notice mentioning on the facts and demanding payment of the amount covered by the cheque is not denied. That being the case, the applicant was put on due notice through the registered notice about all the relevant fact and also the fact of the dishonour of the cheque with the endorsement 'referred to drawer'. Basing on those facts, if the learned Magistrate has taken cognizance of the offence and issued process to the applicant, it cannot be said that the learned Magistrate has acted without any material. Apart from the complaint, the relevant material was placed before him and basing on that material, the learned Magistrate has taken cognizance of the offence. Basing on those facts, if the learned Magistrate has taken cognizance of the offence and issued process to the applicant, it cannot be said that the learned Magistrate has acted without any material. Apart from the complaint, the relevant material was placed before him and basing on that material, the learned Magistrate has taken cognizance of the offence. The mere fact that the order dated 9.10.1991 does not contain the amount observed by the cheque and the date on which the cheque was presented will not have any relevance so long as the applicant was made aware of the facts by issuing a notice as required under section-138 of the Negotiable Instruments Act. As held by the Supreme Court in AIR 1976 SC 1947 , (Smt. Nagavwa v.Veeranna), at the stage of issuing process, the Magistrate is mainly concerned with the allegation made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case. The Supreme Court further- held that the High Court cannot go into the above aspects in its revisional jurisdiction, which is a very limited one. Another submission made by the learned counsel for the applicant is that there was no proof before the learned Magistrate that the cheque was dishonoured for want of sufficient funds. A Division Bench of Andhra Pradesh High Court held in 1992 Cri. L.J. 4048 (Syed Rasool & Sons v. Mides & Co.) that the endorsement made by the banker while returning the cheque unpaid is neither relevant nor decisive and it is a matter of evidence to be collected in the trial to find out as to why the cheque was dishonoured. Following the above decision of the A.P. High Court and also the Division Bench decision of Bombay High Court and Kerala High Court reported in Rakesh Nemkllmar Ponwal v. Narayan Dhondu Joglekar (1993 Cr. L.J. 680) and Thomas Varehese v. P. lerona (1992 Cr. L.J. 3080) a learned Single Judge of Gujrat High Court held in 1994 Cri. Following the above decision of the A.P. High Court and also the Division Bench decision of Bombay High Court and Kerala High Court reported in Rakesh Nemkllmar Ponwal v. Narayan Dhondu Joglekar (1993 Cr. L.J. 680) and Thomas Varehese v. P. lerona (1992 Cr. L.J. 3080) a learned Single Judge of Gujrat High Court held in 1994 Cri. L.J. 2874 (M/s. Deda Silk Mills v. Indian Oversees Bank, Surat) that the provisions of section 138 of Negotiable Instruments Act, cannot be and should not be construed too narrowly or too strictly and such an interpretation would frustrate the object of enacting the said provision. The fact of issuing the cheque and the dishonouring of the cheque not having been disputed by the applicant by replying to the registered notice of the non-applicant, it is upto the applicant to establish during trial that the cheque was returned for any reason other than insufficiency of funds in its accounts. It is a matter to be determined during trial after recording the entire evidence. The prosecution cannot be thrown out even at the stage of framing of charges on the ground that there is no proof of insufficiency of funds The Supreme Court has laid down in AIR 1963 SC 1430 (Chandra Deo v. Prakash Chandra) that for determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry under Sec. 202 CPC. I, therefore, hold that the learned Magistrate has not committed any error in taking cognizance of the case and issuing process to the applicant. The revision petition is, therefore, dismissed.