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2004 DIGILAW 110 (JK)

Pritam Singh v. Tawi Educational Trust

2004-04-19

S.K.GUPTA

body2004
By means of this petition under Section 561-A, Cr. P.C. petitioner seeks quashing of complaint dated 27-4-2003, filed by the respondent under S. 138 of Negotiable Instruments Act and also the order of Judicial Magistrate (Sub Judge) Jammu dated 9-6-2003 by virtue of which the petitioner has been summoned to stand trial under the aforesaid offence. It appears that Tawi Educational Trust, through its Manning Trustee Vidhi S. Singh, preferred a complaint under Section 138 of Negotiable Instruments Act, before the Judicial Magistrate (Sub Judge) Jammu, averring that land measuring 100 Kanals approximately was required for establishing its one of the Institutes and the accused, being a property dealer, was approached to provide and arrange the land. It is further stated that an amount of Rs. 11 lacs (Rupees one lac in cash and rupees ten lacs through cheque No. 321107 dated 4-10-2002), was paid by the complainant to the petitioner-accused, on demand, as approximate cost of the land. It was agreed between the parties that if the required land is not made available to the complainant by the petitioner-accused in token against the amount received by petitioner/accused, cheque No. 357657, dated 4-11-2002 for an amount of Rs. 11 lacs issued by the petitioner-accused in favour of the complainant, drawn at The Jammu Central Co-operative Bank Limited, shall be encashed after one month from the date of agreement. As the petitioner-accused is stated to have failed to provide the land to the complainant, the cheque issued by him was presented for encashment to Jammu Central Co-operative Bank Limited by the complainant through its banker, Punjab National Bank, Domana, Jammu on 7-4-2003. The cheque was, however, returned unpaid for reasons "Account closed", with its memo dated 10-4-2003 and further intimation received in this behalf by the complainant on 12-4-2003. Notice dated 24-4-2003, however, was dispatched through speed post by the complainant to the petitioner-accused, through his advocate, calling upon him to pay Rs. 11 lacs within 15 days from the date of receipt of notice. It is further stated that notice was received by the wife of the petitioner-accused on the same day. Since the petitioner-accused failed to make the payment of the amount mentioned in the notice, despite its receipt, it compelled the com plainant to prefer the complaint against him. 11 lacs within 15 days from the date of receipt of notice. It is further stated that notice was received by the wife of the petitioner-accused on the same day. Since the petitioner-accused failed to make the payment of the amount mentioned in the notice, despite its receipt, it compelled the com plainant to prefer the complaint against him. Learned Magistrate, after recording the preliminary statement of the complainant and the perusal of the averments made in the compliant along with documents annexed thereto, found sufficient grounds and evidence which, prima facie, prove the offence under Section 138, Negotiable Instruments Act, committed by the petitioner-accused, and issued the process on 9-6-2003 through bailable warrants to the tune of Rs. 5,000/- to secure presence of the petitioner-accused, which the petitioner-accused seeks to quash and set aside in this petition, invoking provisions of Section 561-A, Cr. P.C. Heard learned counsel for the parties and perused the record meticulously. Mr. B. S. Manhas, learned counsel appearing for the petitioner, vehemently urged at the threshold that the complaint has been filed on 27-4-2003, much before the expiry of period of notice, as the complainant has served the notice through speed post on the wife of the petitioner on 25-4-2003. Once it is premature and could not be entertained, consequent issuing of process against the petitioner is illegal and abuse of process of Court. His further submission is that the provisions of Sec. 138 of Negotiable Instruments Act clearly and in unequivocal terms mandate that the drawer of the cheque must fail to make the payment to the drawee, after receipt of the notice, within a statutory period provided therein. Therefore, the compliant and the subsequent proceedings are liable to be set aside and quashed. It may be pointed out at the first flush that the High Court does not function as a Court of appeal or review, while exercising powers under Section 561-A, Cr. P.C., when the allegations made in the complaint or the statement of witnesses recorded in support of the same, along with other documents taken at their face value, make out a prima facie case against the accused. The High Court would not interfere in exercise of its inherent powers at the initial stage of issue of process. When a prima facie case is disclosed, the accused must face the trial. The High Court would not interfere in exercise of its inherent powers at the initial stage of issue of process. When a prima facie case is disclosed, the accused must face the trial. While dealing with quashing of complaint at the initial stage, when the Magistrate summons accused to face trial, the Apex Court in State of M.P. v. Harsh Gupta, 1998 (8) SCC 630 : (1999 Cri. L.J. 5011), held as under :- "........... the only question to be considered was whether the complaint and its accompaniments disclosed any or all of the offences alleged against the respondent, the learned Judge not only went into a detailed discussion about his defence but recorded conclusive finding that he was not guilty of the offences alleged against him." The order passed by the Magistrate, in taking cognizance of the complaint and issuing process against the petitioner-accused, when examined on the touch stone of the tests referred to hereinabove, does not appear to have suffered from any legal infirmity, resulting in abuse of process of Court, necessitating exercise of inherent jurisdiction under Section 561-A, Cr. P.C. In view of the above discussion, the petition has no merit and is, accordingly, dismissed, however, without any order as to costs. Record be transmitted back forthwith. Petition dismissed.