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2001 DIGILAW 111 (MP)

Indira Baxi v. Sunita Goyal

2001-02-02

S.P.SRIVASTAVA

body2001
Heard the learned counsel for the applicants as well as the learned counsel representing the respondent. Perused the record. The applicants feel aggrieved by the order passed by the Chief Judicial Magistrate, Morena, dated 15.4.1999, whereunder after taking into consideration the evidence produced by the complainant in regard to the dishonouring of the cheques signed by Smt. Indira Baxi and Chiranjilal Baxi while taking cognizance of the offence contemplated under section 138 of the Negotiable Instruments Act. 1881 thereinafter referred to as the Act) on the ground of dishonouring of the cheques he had consequently took cognizance of the offence contemplated under section 420 IPC. It is not disputed that in case the cognizance of the offence under section 138 of the Act was found to be uncalled for, there could be no occasion for taking the cognizance of the offence under section 420 IPC. Taking into consideration the nature of the controversy involved in both these applications and the fact that the questions raised are identical, they are being disposed of by a common order. A perusal of the complaint filed by the respondent No. 1 indicates that the sole basis for the alleged commission of the offence under section 138 of the Act was the dishonouring of the cheques signed by Smt. Indira Baxi and Chiranjilal Baxi her father-in-law who is aged about 67 years of age. Both these accused reside in Africa House, Mumbai. This fact is not disputed. The learned counsel representing the petitioners has urged that even according to the case of the complainant, the cheques had been dishonoured on the basis of a direction of "stop payment". The assertion of the petitioners is that in fact the entire account between the complainant and the accused had been settled and since the settlement had been reached subsequent to the issuance of the cheques and the entire liability which stood cast upon the accused was discharged under the terms and conditions of the agreement in pursuance whereof the required amount had been paid to the complainant, there was no occasion for the payment of the amount which could be claimed to be due under the cheques in dispute as it could have amounted to a double payment in case any amount was received on the strength of the aforesaid cheques. It was further asserted that the dishonouring of the cheques could not under the circumstances constitute an offence envisaged under section 138 of the Act. The provision contained in section 138 of the aforesaid Act clearly stipulate that the cheque referred to thereunder should have been issued for the discharge, in whole or in part, of any debt or other liability. The submission of the learned counsel for the petitioners is that in fact on the date when the cheques claimed to have been dishonoured, there was no debt or any other liability towards the amount of money for the payment whereof the cheques are claimed to have been issued. The learned counsel for the petitioners has relied upon in support of his submissions on the observations made by the Apex Court in its decision in the case of Pepsi Foods Ltd., & Anr. v. Special Judicial Magistrate & Ors. reported in 1998 (1) MPLJ 494 wherein it has been indicated that summoning of an accused in a criminal case is a serious matter and the Criminal law cannot be set into motion as a matter of course. It was observed that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto and further he has to examine the nature of the allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of the preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. In the present case as is apparent from the material brought on the record here that although the petitioners had tried to substantiate his/her claim in regard to the absence of liability at the relevant time by filing documents but these documents had not been filed before the concerned Magistrate and were not available on record there at the time when the cognizance had been taken by him. In the aforesaid circumstances, the question as to whether the liability contemplated under section 138 of the Act was subsisting or stood discharged at the relevant date or could be deemed to have been wiped out and its effect cannot be considered in the present proceedings under section 482 CrPC. on the basis of the materials sought to be relied upon now which even today does not form part of the original record of the trial Court. However, since the fact of settlement having been reached on 17.11.1998 has not been disputed by the learned counsel for the parties, its effect deserves to be examined and considered by the concerned criminal Court of competent jurisdiction. Taking into consideration the totality of the circumstances, these applications are disposed of finally providing that in case the applicants move an application seeking dispensation of their personal attendance and an other application seeking their discharge before the concerned Magistrate and file along with the same a detailed reply to the complaint annexing therewith the documentary evidence sought to be relied upon by them duly supported by an affidavit showing the absence of any debt or liability as contemplated under section 138 of the Act, in that event the concerned Magistrate shall consider the said applications and if he sees reasons so to do, dispense with the personal attendance of the accused and dispose of the application seeking discharge in accordance with law. The stay order granted by this Court on 20.5.1999, shall stand discharged. Ordered accordingly.