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2004 DIGILAW 698 (RAJ)

Om Prakash Mathur v. State of Rajasthan

2004-04-29

N.N.MATHUR

body2004
JUDGMENT 1. - As the controversy involved in both the petitions u/s. 482 of the Code of Criminal Procedure, they are being decided by this common order. 2. Briefly stated the facts of the case are that the petitioner in his capacity as a Manager (Finance) of the Rajasthan Diesel Sales and Service filed a complaint against the respondent Nos. 2 & 3 alleging therein that the respondents gave a cheque of Rs. 48,409/- being Cheque No. 132020 dated 10.10.1996 and in another case, Cheque No. 132019 dated 30.9.1996 for a sum of Rs. 50,000/- payable at Punjab National Bank. The cheques were given against the work done by the complainant for the accused-company. As per the assurance given, the complainant presented the cheques before the Banker but the same were returned with a remark that "the cheques were not signed by two Authorised Signatories" and hence the same could not be encashed. It is alleged that the respondents knowingly with an intention to cheat and deceive the complainant- company gave the said cheques, The said cheques were deliberately not signed by the Authorised Signatories. The statement of the complainant was recorded u/s. 200 of the Code of Criminal Procedure, wherein, he categorically stated that assurance was given by the accused persons on behalf of the company that cheques will be honoured on their presentation before the Bank. The learned Magistrate refused to take cognizance on the ground that the allegation does not satisfy the ingredients for offence u/s. 138 of the Negotiable Instruments Act or Section 420 IPC. The matter was unsuccessfully carried before the Special Judge SC/ST (Prevention of Atrocities) Act, Udaipur. Both the revisions were dismissed by the revisional Court by order dated 8.4.1999. 3. I have heard learned counsel for the parties and perused the record of the case. The matter was unsuccessfully carried before the Special Judge SC/ST (Prevention of Atrocities) Act, Udaipur. Both the revisions were dismissed by the revisional Court by order dated 8.4.1999. 3. I have heard learned counsel for the parties and perused the record of the case. Section 138 of the Negotiable Instruments Act (hereinafter referred to as `the Act') makes it clear that where a cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence u%s. 138 of the Act. However, when the cheque is handed over undated or not signed by the authorised person, there is no intention of making it an instrument of immediate negotiation of discharge For subsisting liability or debt in such a case, the complaint against the accused for offence u/s. 138 of the Negotiable Instruments Act cannot be maintained. Thus, in my view the learned Magistrate was right in not taking cognizance against the accused-respondents for offence u/s.138 of the Act. However, it is significant to note that the cheques were given in view of the work done by the complainant party in the complainant-company with an assurance that as soon as the cheque are taken, the same shall be encashed. Thus, prima facie the accused persons fraudulently or dishonestly induced the complainant to do the job for them against the cheques issued. Thus, there is a prima facie case against the accused persons for offence u/s. 420 IPC. Both the Courts below have committed error in not considering the allegations made against the accused persons in the complaint constituting offence u/s. 420 IPC against the accused persons. 4. Consequently, both the petitions are allowed. The order dated 8.4.1999 passed by the Special Judge SC/ST Cases Udaipur and order dated 20.9.1997 passed by the Judicial Magistrate No. 1, North Udaipur are quashed and set aside. Both the complaints are restored. 4. Consequently, both the petitions are allowed. The order dated 8.4.1999 passed by the Special Judge SC/ST Cases Udaipur and order dated 20.9.1997 passed by the Judicial Magistrate No. 1, North Udaipur are quashed and set aside. Both the complaints are restored. The accused-respondents shall be tried for offence u/s. 420 IPC.Petition allowed. *******