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2010 DIGILAW 106 (JK)

Mohd. Yousuf Bhat v. Mohd. Maqbool Kumar

2010-03-04

GH.HASNAIN MASSODI

body2010
1. The petitioner, invoking inherent powers of the Court under section 561-A of Criminal Procedure Code, seeks quashment of order of learned Chief Judicial Magistrate, Pulwama, dated 15.6.2009 whereby cognizance has been taken in a complaint under section 138 under Negotiable Instrument Act (for short Act) and process issued against the petitioner. 3. Petition has been filed against the following backdrop. 3. The respondent on 15.06.2009 filed a complaint in the Court of Chief Judicial Magistrate, Pulwama, under section 138 of Act, against the petitioner alleging therein that a cheque bearing No. 000807 for an amount of Rs. 1.5 lac dated 10.5.2009 drawn by the petitioner payable to respondent at J&K Bank branch office Pulwama had been returned to the respondent unpaid; that as per bank endorsement dated: 26.5.2009 sufficient funds were not available in the petitioners account to make the payment. The respondent claimed to have issued notice to the petitioner on 26.5.2009 itself asking the petitioner to pay cheque amount within 15 days from the date of receipt of notice. The respondent alleged that the petitioner had committed an offence punishable under section 138 of the Act, and that the respondent had sufficient evidence to substantiate the complaint. 4. Learned Chief Judicial Magistrate, Pulwama on receiving the complaint recorded the statement of the respondent and one witness in support of the complaint and held the complaint and other material on the file to prima-facie disclose commission of offence punishable under section 138 of the Act. Learned Chief Judicial Magistrate proceeded to take cognizance of the offence and issued process against the petitioner. The impugned order according to the petitioner amounts to an abuse of the process of court and warrants exercise of inherent powers on following grounds: 1. That the statement of the complainant and his witness in support of the complaint has been recorded on solemn affirmation as against oath as required under section 200 Cr.P.C and thus the statements could not be looked into much less relied upon by learned Chief Judicial Magistrate. Resultantly, it is urged, the impugned order is based on a material brought on the file otherwise than in accordance with law. 2. That the cheque in question was drawn on behalf of "Feroz Fruit Company" and it was no where alleged in the complaint that the petitioner was the Executive Director of the Company or partnership concern or represented the business concern. 2. That the cheque in question was drawn on behalf of "Feroz Fruit Company" and it was no where alleged in the complaint that the petitioner was the Executive Director of the Company or partnership concern or represented the business concern. The respondent having failed to comply with the requirement of section 141 of the Act, it is pleaded, the impugned order taking cognizance in the matter was liable to be quashed. 3. That it was no where stated in the complaint that notice of demand dated 26.5.2009 was in fact received by the petitioner; that the complaint is to be filed only after the drawer of the cheque fails to make payment within 1 5 days from the date of receipt of the notice and that in the present case it was nowhere mentioned that the notice was received by the petitioner and thus the complaint did not warrant taking of cognizance and issuance of process against petitioner. 4. That cheque was issued not for payment of "debt" or "other liability" but was outcome of compromise. 5. I have head Counsel for the parties and gone through the petition and other material available on the file. 6. Chapter XVI Code of Criminal Procedure 1989 Svt. deals with the procedure to be followed by Magistrate taking cognizance of an offence in a complaint. Section 200 requires the Magistrate to examine the complainant and the witness(s), if any, upon oath. The Code does not define "Oath" not does it lay down-the form or contents of "the oath". The ground urged in the petition thus makes it imperative to refer to the Judicial Oaths Rules, 1950 Svt. (1894 AD). Rule 3 enumerates the authorities empowered to administer Oaths and affirmations in discharge of their duties. Rule 4 identifies the person who may be administered Oath or affirmation. Rule 5 lays down that a witness instead of making an Oath may make an affirmation. Rule 6 provides forms of Oaths and Affirmations. Rule 12 of the Act provides that omission to make Oath or affirmation and irregularity in administering Oath or affirmation or irregularity in the form in which it is administered, does not invalidate proceedings or render inadmissible evidence. In the present case the complainant and his witness have made their statements on solemn affirmation. Rule 12 of the Act provides that omission to make Oath or affirmation and irregularity in administering Oath or affirmation or irregularity in the form in which it is administered, does not invalidate proceedings or render inadmissible evidence. In the present case the complainant and his witness have made their statements on solemn affirmation. On taking holistic view of the Judicial Oaths Rules it follows that recording statement of the complainant or witness on solemn affirmation instead of Oath, does not have any negative fall out for the proceedings. Even if solemn affirmation may not be taken as substitute for Oath, the omission or irregularity does not affect the validity of proceedings or the order taking cognizance of the offence on a complaint. 7. In 1952 Supreme Court 54 (55) it has been held that omission to administer Oath even to an adult goes only to credibility of the witness not his competence. The reliance placed on 2006 (II) 571 by learned counsel for the petitioner is misplaced for the reasons that in the reported case the statement of the complainant and witness was seemingly not recorded on Oath and not even on solemn affirmation. It was held in the said background that the statement of the complainant and witness was not to form basis for issuance of process. In 1979, Allahabad Law journal 880(885) it has been held that where statement is recorded on solemn affirmation, it could not be assailed on ground that Oath was not administered in as much as omission to administer the Oath or make any affirmation does not invalidate the proceedings. 8. Section 141 of the Act provides that where a person committing an offence under section 138 is a company, every person, who at time the offence was committed, was Incharge of, and was responsible to the company for conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and liable to be proceeded against Explanation to section 141 defines company as a body corporate including firm or other association of individuals. It follows that section 141 is not attracted in case of sole proprietary concern even if the business is styled as a company. It follows that section 141 is not attracted in case of sole proprietary concern even if the business is styled as a company. Section 141 of the Act has no application and in the present case and there was no requirement to proceed against the company or aver that the person proceeded against, at time the offence was committed was Incharge of and responsible to the company for conduct the business of the company. It is nowhere averred by the petitioner nor any material placed on file to show that drawer was a body corporate or other association of individuals. It needs no emphasis, the petitioner being drawer of the cheque, it is for the petitioner to show that the business concern on whose behalf cheque has been issued by the petitioner, is a body corporate or association of individuals contemplated by section 141 of the Act, as it is the petitioner who is expected to be in possession of relevant documents like certificate of incorporation. The petitioner cannot draw a cheque and turn around to say that cheque was issued by a business entity defined under section 141, without placing any material on the file. 9. In the circumstance only because the business run by the petitioner is run under name and style of "Gulzar and Company" does not attract section 141 and render the impugned order and the proceedings illegal. The Trial Magistrate, as has been emphasized time and again, is to rely upon the averments made in the complaint and the person against whom process is issued is free to identify before the Trial court, as the case proceeds, the cracks and gaps in the case set up by the complainant. 10. The ground set up in the petition regarding failure of the respondent to comply with requirement of section 138 before filing the complaint is also specious and bereft of any merit. Section 142 of the Act prohibits cognizance of offence punishable under section 138 except upon a complaint in writing made by payee or holder in due course of the cheque within one month of the date on which the cause of action arises under clause (c) proviso to section 138. Section 142 of the Act prohibits cognizance of offence punishable under section 138 except upon a complaint in writing made by payee or holder in due course of the cheque within one month of the date on which the cause of action arises under clause (c) proviso to section 138. The conjoint reading of sections 138 and 142 of the Act leads to the conclusion that whenever a cheque is issued, the payee or holder in due course of the cheque is to present it at the bank within a period of 6 months from the date it is drawn or within a period of its validity, whichever is earlier. But in the event the cheque is returned without payment due to non availability of funds or other reasons, the payee or holder in due course is required to serve a notice within one month from the date the cheque is returned un-paid to the drawer of the cheque requiring the drawer to make payment of the cheque amount within 15 days from the date of receipt of the notice. But in the event the cheque amount is not paid within 15 days of the receipt of the notice, the payee or holder in due course gets right to file a complaint alleging commission of offence punishable under section 138. It is pertinent to point out that section 138 is a unique penal provision, in which notwithstanding the commission of offence, the criminal proceedings are prohibited so that the person who may be visited with penal consequences may take steps to rectify the mistake and make the payment and escape criminal liability. In the present case as per offence in the complaint and postal receipts placed on the file notice of demand was issued to the petitioner on 26.5.2009 i.e. welt within time prescribed under section 138 proviso (b) of the Act. The complaint was filed on 15.06.2009 i.e. 21 days after the notice was sent under registered cover to the petitioner. The complaint thus was filed beyond 15 days i.e. 6 days after the period within which the drawer was required to make the payment. The notice under registered cover was sent from Pulwama to Shopian at the residential address of the petitioner- 30 Kilometers away from Pulwama. The complaint thus was filed beyond 15 days i.e. 6 days after the period within which the drawer was required to make the payment. The notice under registered cover was sent from Pulwama to Shopian at the residential address of the petitioner- 30 Kilometers away from Pulwama. The respondent is not expected to have been aware of the date of receipt of the notice of demand by the petitioner and thus not required to mention the date of receipt in the complaint. It was sufficient for the petitioner to aver that the notice has been sent by the registered post on a particular date exactly what the respondent as done. It is for the petitioner to prove before the Trial court that the complaint was premature or that the complaint was filed without allowing the petitioner to make the payment within 15 days from the receipt of the notice. There may be a case where complaint is filed within fifteen day of dispatch of notice of demand. To illustrate where notice is dispatched on Ist. of calendar month and complaint filed on 14th of the or therefore; in such case there would be no difficulty in holding the complaint to be premature. But where complaint is filed after the notice period is over, an averment that notice was so dispatched satisfies the requirement of law. 11. In (2007) (6) 555 the Supreme Court while dealing with the scope of section 138 proviso clause (b) has observed: "17. It is also to be borne in the mind that the requirement of giving the notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the courts in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons and receiving a copy of complaint; with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by Ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bihaskarans case (supra), if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act". The Supreme Court, further held "Section 27 gives rise to a presumption that service of notice has been effected when it is sent to correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that inspite of the return of the notice un served, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business". 12. In view of aforesaid legal position the challenge thrown to the impugned order on the ground of non-compliance of requirement of section 138 is destained to fail. 13. The argument that a complaint under Section 138 of the Act was not maintainable as the cheque amount was to be paid in consequence of compromise arrived at between the parties and thus did not constitute `debt or "other liability" within meaning of section 138 is also devoid of any substance and bound to fail. It appears that after an earlier cheque drawn by the petitioner bounced, complaint was filed under Section 138 of the Act against the petitioner. It appears that after an earlier cheque drawn by the petitioner bounced, complaint was filed under Section 138 of the Act against the petitioner. The petitioner admitted the respondents claim and it was agreed upon between the parties that the petitioner shall pay the amount of Rs.8.00 Lacs towards debt the petitioner owed to the respondent. It is to discharge said liability that the cheque in question was drawn. In the circumstances mere fact that the compromise was arrived at in the proceedings of identical nature and cheque drawn after such compromise, does not entitle the petitioner to question liability of the impugned order. 14. For the reasons discussed above no ground is made out to invoke jurisdiction of the Court under section 561-A Cr. PC. There has been no abuse of process of court as alleged by the petitioner and Challenge to impugned order, thus is bound to fail. 15. Resultantly the petition is dismissed. 16. However, the grievance voiced in the complaint warrants transfer of case to any other court of competent jurisdiction. The complaint titled Mohd Maqbool Kumar v. Mohd Yusuf Bhat, is withdrawn accordingly from files of Chief Judicial Magistrate, Pulwama and transferred to the Court of JMIC, Pulwama for disposal under law. 17. Before parting with this order I deem it necessary to point out that the mode and manner in which an application for re-calling non-bailable warrants issued against the petitioner has been dismissed and which seemingly has been immediate cause for the petitioner to approach this court, is not in conformity with Law. The object of the procedure laid down in chapter VI Code of Criminal Procedure is only to secure presence of a person against whom a Criminal complaint has been filed and cognizance of offence taken. It is only in presence of such person that inquiry/trial is to commence so that he is not only aware of the allegation leveled against him but has an opportunity to test the evidence lead to substantiate such allegations, on the touchstone of cross examination. The provisions incorporated in chapter VI are not punitive in character and after a person against whom summon is issued submits to the jurisdiction of court, it is no more open to the Magistrate to continue with the coercive measures. The provisions incorporated in chapter VI are not punitive in character and after a person against whom summon is issued submits to the jurisdiction of court, it is no more open to the Magistrate to continue with the coercive measures. In the present case, once, the petitioner approached the Trial Court on 22.8.2009 with an application for cancellation of the non-bailable warrants and exemption from personal attendance on the grounds set out in the application, it was no more open to the learned Chief Judicial Magistrate to reject the application on the ground that the petitioner was not present in person. It appears to have escaped attention of Chief Judicial Magistrate that the petitioner through his counsel had caused appearance and claiming to be on sick bed, asked for his exemption. The requirement of appearance of petitioner thus were fulfilled. The right course in the circumstance open for learned Chief Judicial Magistrate was to re-call the warrants subject to such conditions like furnishing of surety bond in the amount as considered proper and to insist on personal appearance within a particular period or by a particular date. There is no reason to chase a person willing to face trial more so with non bailable warrants when the person causes appearance through lawyer. The right course is to record the presence and exempt the person from personal appearance having regard to the grounds urged in the application till such date as is deemed fit. 18. The petition is disposed of accordingly. The parties are directed to cause their appearance to the transferee court on 15.03.2009.