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2010 DIGILAW 2224 (PNJ)

Bhagwati Feed Mills v. Swastika Feeds Limited

2010-08-03

SHAM SUNDER

body2010
JUDGMENT Mr. Sham Sunder, J.:- This petition under Section 482 Cr.P.C., for quashing Criminal Complaint No. 941 dated 15.09.08, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be called as the ‘Act’ only) read with Section 420 IPC (Annexure P2), the summoning order dated 18.09.09 (Annexure P3), and, all the subsequent proceedings, arising therefrom, has been filed by the petitioners. 2. Petitioners No. 2 and 3, were stated to be responsible for the conduct of day to day working/business of petitioner No. 1. In order to discharge the legally enforceable liability, the accused, issued cheque, bearing No. 456656 dated 15.05.08, for Rs. 1,54,200/-, drawn on State Bank of Patiala, Kandori Branch, Himachal Pradesh, in favour of the complainant/respondent company. When the cheque, was presented, it was dishonoured with the remarks “Insufficient Funds”. A legal notice, was issued. When the amount, was not paid, within the stipulated time, left with no alternative, criminal complaint, aforesaid, was filed. 3. After going through the preliminary evidence, the trial Court, summoned the accused/petitioners, vide order dated 18.09.08. 4. I have heard the Counsel for the petitioners, and, have gone through the documents, on record, carefully. 5. The Counsel for the petitioners, submitted that, the complaint, was filed, at Ludhiana, whereas, petitioner No. 1 firm, is carrying on its business at Gurdaspur. He further submitted that, the mandatory provisions of Section 202 Cr.P.C., were not complied with, as no enquiry, was got conducted, by the Court concerned, before issuance of process. He further submitted that, the cheque, was given, in blank, by petitioner No. 2, a partner of the firm. He further submitted that, the cheque, was not issued, with a view, to discharge the legally enforceable liability, but, by way of security. He further submitted, in the alternative that, in case, the Court, comes to the conclusion, that the petition, is liable to be dismissed, then the complaint, be transferred, to a competent Court, at Gurdaspur, or the presence of the petitioners, be exempted. 6. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the petitioners, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. 6. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the petitioners, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is settled principle of law that, at the time of deciding the petition, under Section 482 Cr.P.C., the Court, is only required, to look into the allegations, contained in the complaint, and, take into consideration, the preliminary evidence, led by the complainant. The allegations, contained in the complaint, clearly prima-facie established, that cheque, in question, was issued, by the partners of petitioner No. 1, who were incharge and responsible, to the said firm, for the conduct of its day to day business. When the cheque, was presented, it was dishonoured with the remarks “Insufficient Funds”. Whether this cheque, was given, as a security or it was blank, are the questions, which relate to disputed facts, and, can be adjudicated upon, during the trial of the case. Even the probable defence of the accused, cannot be taken into consideration, at the time of deciding the petition, under Section 482 Cr.P.C. Since the allegations, contained in the complaint, prima-facie constitute the offence, punishable under Section 138 of the Act, the trial Court, was right, in summoning the accused-petitioners for the said offence. 7. No doubt, Section 202 Cr.P.C., lays down, that if the accused, are residing outside the jurisdiction of the Court, issuing the process, it is required, to conduct an enquiry itself or get the matter investigated before issuance of process. It is the discretion of the Court, as to whether, the enquiry, is to be conducted by itself, or, it is to be got conducted through an independent agency. The instant case, is largely based, on the documentary evidence. The cheque, was issued, to discharge legally enforceable liability, and, when the same, was presented, it was dishonoured. It was after going through the allegations, contained in the complaint, the preliminary evidence and the documents, on record, that the trial Court, came to the conclusion, that the offence, punishable under Section 138 of the Act, was constituted. The trial Court, thus, made enquiry itself, and after recording satisfaction, that there were sufficient grounds, to summon the accused, issued the process. Under these circumstances, it cannot be said, that the mandatory provisions of Section 202 Cr.P.C., were not complied with. The trial Court, thus, made enquiry itself, and after recording satisfaction, that there were sufficient grounds, to summon the accused, issued the process. Under these circumstances, it cannot be said, that the mandatory provisions of Section 202 Cr.P.C., were not complied with. The submission of the Counsel for the petitioners, in this regard, being without merit, must fail, and the same stands rejected. 8. Now coming to the alternative submissions, made by the Counsel for the petitioners, it may be stated here, that none of the same, is liable to be accepted. In case, petitioners No. 2 and 3, want the exemption of their personal attendance, in the concerned Court, they can move an application, detailing therein, the reasons for such exemption. It is the function of the trial Court, to decide that application, in accordance with the provisions of law. This Court, while deciding the petition, under Section 482 Cr.P.C., is not required, to usurp the functions of the trial Court. No exemption from personal attendance, under these circumstances, in the present petition, can be granted, to petitioners No. 2 and 3. However, it is made clear, that they would at liberty, to make an application, in that regard, before the trial Court, which shall be decided by it, in accordance with the provisions of law. The submission of the Counsel for the petitioners, in this regard, being without merit, must fail, and the same stands rejected. 9. Coming to the prayer for transfer of the case, to Gurdaspur, in my opinion, no ground, whatsoever, is made out, for doing so. Since the cheque, was issued, at Ludhiana, it was presented, through bankers, at Ludhiana, it was dishonoured, at Ludhiana, and, cause of action, accrued to the complainant, to file the complaint, at Ludhiana, the complaint, therefore, does not deserve to be transferred to a competent Court, at Gurdaspur. The submission of the Counsel for the petitioners, in this regard, being without merit, must fail, and the same stands rejected. 10. For the reasons recorded above, Criminal Misc. No. M-21899 of 2010, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 11. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned immediately. -------------