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2005 DIGILAW 323 (JK)

Sanjay Gupta v. Shivalik Investments

2005-11-24

J.P.SINGH

body2005
1. Sanjay Gupta, petitioner, seeks quashing of proceedings pending before learned City Judge, Judicial Magistrate Ist Class, Jammu in case titled M/s Shivalik Investments V/S Sanjay Gupta. 2. Sh. Bhatia, learned counsel appearing for the petitioner, submits that complaint filed by M/s Shivalik Investments is not maintainable because Sh. Ramit Gupta, Manager of the concern, does not have any locus-standi to file the complaint. 3. Sh.Sudesh Sharma, learned counsel appearing for respondent, on the other hand submits that Sh.Ramit Gupta is duly authorized to sign the complaint which has been filed by M/S Shivalik Investments,Reva Kutir, Sarwal Chowk, Jammu. 4. Learned counsel appearing for respondent further submits that the plea regarding the capacity of Sh.Ramit Gupta to sign the complaint on behalf of M/S Shivalik Investments, Reva Kutir, Sarwal Chowk, Jammu, is a factual plea which plea cannot be considered in present proceedings. 5. Learned counsel appearing for respondent submits that, even if, some defect is found in the authorization, the same is remediable. Learned counsel has cited the case titled M.M.T.C. Limited and anr. V/S Medchl Chemicals and Pharma (P) Limited and another, reported as 2002 SCC (Cri) 121 and Sagayadurai V/S J.D.Electronics, reported as 1997(2) Crimes 115 (Madras High Court) . 6. Cognizance taken by a Court, cannot be questioned, on a plea which, for its proper adjudication, needs to be examined on the basis of evidence of the rival parties. 7. Jurisdiction under Section 561-A of the Code of Criminal Procedure can be exercised only if it is established that on admitted facts, as they come out from the records of the Trial Court, no case for issuance of process is made out on grounds based on law or admitted facts. 8. In the present case, cognizance has been taken on the complaint of M/S Shivalik Investments, Reva Kutir, Sarwal Chowk, Jammu, which complaint has been signed by Sh.Ramit Gupta who has disclosed himself to be the Manager of the concern. The cheque in question too has been issued in the name of M/S Shivalik Investment. 9. No fault can, thus, be found in the complaint filed by M/S Shivalik Investment, Reva Kutir, Sarwal Chowk, Jammu. 10. Sh.Bhatia, learned counsel appearing for petitioner, has raised yet another plea, which is an interesting plea. 11. Sh.Bhatia submits that complaint is not accompanied by a list of witnesses. 9. No fault can, thus, be found in the complaint filed by M/S Shivalik Investment, Reva Kutir, Sarwal Chowk, Jammu. 10. Sh.Bhatia, learned counsel appearing for petitioner, has raised yet another plea, which is an interesting plea. 11. Sh.Bhatia submits that complaint is not accompanied by a list of witnesses. According to Sh.Bhatia, this omission is fatal in view of the mandate of law contemplated by Section 204 (1) (1A) in terms whereof, no process can be issued by a Magistrate in the absence of list of witnesses with the complaint. 12. Sh.Bhatia, learned counsel appearing for petitioner, relies on case titled ˜Colo Writing Instruments Limited V/S Michael Jackson Fashion Limited™ reported as 1998 SLJ 26. This judgment supports the submission of learned counsel for the petitioner. 13. Sh. Sudesh Sharma appearing for respondent has cited case titled ˜Moulvi Habibul Rehman Fazi and others V/S State of U.P and anr.™, reported as 1998 Criminal Law Journal 2345 and ˜Augusty V/S Rajan™ reported as cases on dishonour of cheques (HC) (Kerala) 157 to project the view that the non filing of list does not invalid the action of Magistrate in issuing process against the accused. 14. I have considered the submissions of learned counsel for the parties, who appear to have worked hard on their case. 15. Section 204(1) (1A) of the Code of Criminal Procedure, begins with the expression no summons or warrant shall be issued�, which expression, in my opinion, conveys the intention of the Legislature in providing that until a list of the prosecution witnesses have been filed, no Court shall issue summons or warrant on a complaint. This Section, looked from any angle, can, thus, be held to be directory, as urged by Sh. Sudesh Sharma. 16. The view propounded by Allahabad and Kerala (HC) is, thus, not acceptable, as this view, does not go in line with the plain language of Section 204 (1) (1A) of Code of Criminal Procedure. 17. The judgment cited by learned counsel for the petitioner, is not, however, applicable to the present case because the complaint in the present case, is not without the list of prosecution witnesses. The complainant has, after concluding the complaint, mentioned the witnesses under the Head, Name of witnesses. In this Head, at Serial No. 1, the complainant records as follows: Concern staff of the concerned banks� 18. The complainant has, after concluding the complaint, mentioned the witnesses under the Head, Name of witnesses. In this Head, at Serial No. 1, the complainant records as follows: Concern staff of the concerned banks� 18. Although, the description of the witnesses sought to be mentioned by the complainant, has not been properly reflected under the Heading, Name of witnesses, yet the same, when read with Paragraph No.4 of the complaint comes out to show that the complainant had referred to the concerned staff of Oriental Bank of Commerce, Rehari and Jammu Central Co-operative Bank Limited, which are two banks who according to the complainant would prove the movement of the cheque and its ultimate dishonour. 19. The Negotiable Instruments Act has been amended and in terms of the amendment introduced in the Negotiable Instruments Act, evidence by way of affidavits too is permissible. 20. In view of the intendment of the Negotiable Instruments Act and to curb the menace of dishonour of cheques, strict construction of Code of Criminal Procedure, would negate the purpose, which is sought to be achieved by the amendments introduced in the Negotiable Instruments Act from time to time. 21. I, thus, hold that the complaint filed by the respondent, substantially satisfies the requirements of Section 204 (1) (1A) of the Code of Criminal Procedure. The second point raised by learned counsel for the petitioner too, thus, fails. 22. No other point has been urged in support of the petition. 23. There is no merit in this petition, which is dismissed as such.