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Rajasthan High Court · body

1996 DIGILAW 691 (RAJ)

Sunil Noratmal Khandelwal v. State of Rajasthan

1996-07-09

A.K.PARIHAR

body1996
Honble PARIHAR, J. – This is a petition under Sec. 482 Cr.P.C. for the quashing the process issued by the Cheif judicial Magistrate, Rajkot (Gujarat) in Criminal Case No. 2395 of 1996. As per averments made by the petitioner, a complaint was filed by respondent No. 3, Yogesh H. Sagar, Executive Director of M/s. Sahyog Fiscal Services Private Limited, Rajkot, before the Chief Judicial Magis- trate at Rajkot against the petitioner and one Dalip Narotmal Khandelwal, for the offence punishable under Sec. 138 read with Sec. 142 of the Negotiable Instruments Act. As per the complaint of respondent No.3, the accused purchased 25,900 partly paid up shares of Industrial Development Bank if India at the rate of Rs. 27.50 each under Bill No. R/10-23/95-96 on 9.10.1995.The transaction is alleged to be ta- ken place at Rajkot. The complainant further averred in his complaint that towards discharge of partial liability, the accused issued a cheque of Rs. One Lac from account No. 4947 bearing No. 3314748 dated 14/12/1995 in favour of the complainant. The complainant has further averred that the cheque was sent for clearance through the Karur Vaishaya Bank Ltd. Rajkot on 9/4/1996. However, the same was returned back on 9/4/1996 for want of sufficient funds in the Bank Account. Thereafter,a notice was given to the accused on 17/4/1996 and the same was received by the accused on 17/4/1996 and the same was received from the accused on 19/4/1996. Reply was also received from the accused telegraphically as well as through their Advocate. On receipt of the above complaint, the Chief Judicial Magistrate, Rajkot (Gujarat) registered a complaint and summons were issued to the accused under Sec. 138 of the Negotiable Instruments Act, to be made returna- ble on 20/6/1996.The petitioner has challenged the above order of Chief Judicial Magistrate, Rajkot in the present petition. (2) It has further come on record that the co-accused Dalip Noratmal Khandelwal, who happens to be the brother of the petitioner, has also filed a petition under Sec. 482 Cr.P.C. before the High Court of Gujarat at Ahmedabad, against the same criminal complaint No. 2395 of 1996, registered before Chief Judicial Magistrate, Rajkot and as per submissions of the learned counsel for the petitioner, notices so far have been issued by the Honble High Court of Gujarat in the said petition. (3) The petitioner has filed the present petition on the ground that he is not the author of the alleged cheque nor he has any information regarding any dealing with respondent No. 3 because the petitioner is residing at Ajmer and is doing his business at Ajmer only. Petitioner has further alleged that as per certificate issued by the Bank, the Cheque was returned on 15/12/1995, however, no notice within 15 days as contemplated under proviso to Clause B of Sec. 138 of Negotiable Instru- ments Act was given by the respondent No. 3. The petitioner has further alleged that only because the petitioner happens to be the brother of the author of the Cheque at Rajkot, he has malafidely and falsely been implicated in the Criminal Case, which is nothing but abuse of the due process of Court. Petitioner has also taken plea of supression of facts, so far as date on which the Cheque was returned by the Bank to the respondent No. 3 and has, thus, on the ground that he is residing at Ajmer, has sought jurisdiction of this Court for granting indulgence under Sec. 482 Cr.P.C. (4) Before registering the above petition, the Registry raised two objections, one in regard to the jurisdiction of this court becasue the petition has been filed against the order dt. 10/5/96 passed by Chief Judicial Magistrate, Rajkot (Gujarat) and another with regard to some documents placed on record, which are in Gujrati Language. So far as second objection is concerned, the counsel for the petitioner has placed the English translation of the documents, which are in Gujrati. However, arguments were heard on the first objection in regard to the jurisdiction of this Court. (5) Mr. K.J. Kakad,learned counsel for the petitioner, with all vehemence at his command submitted that there was no prima-facie proof against the petitioner before the Chief Judicial Magistrate, Rajkot and no cognizance could have been taken against the petitioner. However, arguments were heard on the first objection in regard to the jurisdiction of this Court. (5) Mr. K.J. Kakad,learned counsel for the petitioner, with all vehemence at his command submitted that there was no prima-facie proof against the petitioner before the Chief Judicial Magistrate, Rajkot and no cognizance could have been taken against the petitioner. He has further argued that under Art. 21 of the Consti- tution of India, every person has a right of his life and personal liberty and the same cannot be deprived of except according to the procedure established by law and to enforce that right, under Art. 21 of the Constitution of India, the petitioner has right to seek protection of this Court under Art. 226 of the Constitution of India and this Court has jurisdiction to entertain a petition under Sec. 482 Cr.P.C.even if the cognizance has been taken by a Court in different State. The main submission of Mr. Kakad is that there was no proper notice as required under Sec. 138 of Negotiable Instruments Act and as such, the procedure adopted by the Trial Court,i.e. the Court of Chief Judicial Magistrate, Rajkot was not in accordance with law and the petitioner has a right of protection under Art. 21 of the Constitution of India.Counsel for the petitioner has further submitted that there was no prima facie proof against the petitioner before the Court of Chief Judicial Magistrate, Rajkot and no cognizance could have been taken against the petitioner. Counsel for the petitioner has placed reliance on the Division Bench judgment of Kerala High Court, reported in Kumeri Singh vs. Amarappa (1) and has also placed reliance on Division Bench judgment of this Court reported in Govind Ram vs. Regional Settlement Commissioner, Rajasthan, Jaipur and others (2), as well as judgment of Apex Court reported in Janta Dal vs. H.S. Choudhary and others (3), connected petitions. (6) After having gone through the file as well as the judgments cited by the counsel for the petitioner and also considering the submissions made by the learned counsel for the petitioner, in my opinion, none of the submissions made by the counsel for the petitioner merits acceptance. As per submission made by the learned counsel for the petitioner, admittedly the petitioner and the other co- accused, Dalip Noratmal Khandelwal and brothers and doing the same business in share market. As per submission made by the learned counsel for the petitioner, admittedly the petitioner and the other co- accused, Dalip Noratmal Khandelwal and brothers and doing the same business in share market. Further, the complainant has submitted details of the transaction which took place in Rajkot and has also placed certificates of Bank before the Trial Court and when there is an allegation of such a big transaction, the matter can only be decided by the Trial Court after taking evidence of both the parties. All the points raised by the counsel for the petitioner relate to the merits of the case which can only be decided by the Trial Court. So far as objection regarding compliance of provisions of Sec. 138 is concerned, there are two versions on record.The petitioner alleges that as per certificates issued by the Bank the alleged cheque was retuned on 15/12/1994 whereas as per complaint of the respondent No. 3, the che- que was returned on 9/4/96 and thereafter, the notice was given to the accused on 17/4/1996.The receipt of notice is not disputed by the petitioner.The judgement of Division Bench of Kerala High Court (supra) is not relevant in the facts and circumsatances of the present case in so far as that the actual date of return of the Cheque by the Bank can only be proved on the basis of record. The author of Che- que and the petitioner are involved in the whole transaction or not, can only be decided by the Trial Court after evidence of both the parties. As such, the protection under Art. 21 of the Constitution of India, as sought by the petitioner, is not attracted in the facts and circumstances of the present case. Furthermore, under Art. 227 of the Constitution of India, this Court and Tribunals within the territory of this State. This worud only be an abuse of process of law if this court interferes with the proceedings of the Subordinate Court, which is not within the territory of jurisdiction of this Court, moreso, under Sec. 482 Cr.PC I am of the opinion that this Court has no jurisdiction to entertain the petition under Sec. 482 Cr.PC for quashing a proceeding pending before Cheif Judicial Magistrate, Rajkot (Gujarat). The peti- tioner, rather cannot be allowed to abuse the due process of law by filing the petition under Sec. 482 Cr.P.C. before this Court whereas the co-accused has also filed a similar petition before the Gujarat High Court at Ahmedabad challenging the same proceedings before the Court of Chief Judicial Magistrate, Rajkot (Gujarat). The other judgments cited by the learned counsel for the petitioner are not relevant in the facts and circumstances of this case. In view of the above discussions, it is held that this Court has no jurisdiction to entertain the petition under Sec. 482 Cr.PC for quashing the proceedings pending before a Subordinate court in different State. The petition is, therefore, dismissed accordingly.