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2013 DIGILAW 729 (GAU)

Sashikant Prasad,Ramakant Prasad v. Md. Quadir

2013-10-04

UJJAL BHUYAN

body2013
JUDGMENT Ujjal Bhuyan, J. 1. Heard Mr. SP Roy, learned counsel for the petitioners. None appears for the respondents. By way of this petition, under Article 226 of the Constitution of India, petitioners seek quashing of Complaint Case No. 4147/2010, under section 138 of the Negotiable Instruments Act, 1881 (NI Act), pending in the Court of Chief Judicial Magistrate (CJM) Aligarh, Uttar Pradesh. 2. Case of the petitioners' is that, petitioner No. 1 is the son of petitioner No. 2. Petitioner No. 2 is the sole proprietor of a Proprietorship Firm in the name and style of M/s. Glass Corner, situated at Athgaon, Guwahati. Petitioner No. 2, as the Proprietor of M/s. Glass Corner, issued 20 Nos. of undated cheques in favour of M/s. Monex Glass Pvt. Ltd., Aligarh represented by the respondent as security guarantee for the goods supplied by the respondent to the said firm. Petitioners have narrated extensively in the writ petition about how they were compelled to receive the goods of respondent, details of which are considered not necessary to be gone into for the purpose of adjudication of the case. Suffice it to say that the goods were found to be defective. In breach of contract, respondent encashed 13 of the undated cheques issued by petitioner No. 2 as Proprietor of M/s. Glass Corner, which were not meant for encashment, but only to be retained as surety. At that stage, petitioner No. 2 sent instruction dated 08.04.2010 to his banker Central Bank of India, Kumarpara Branch, Guwahati to stop payment of the remaining 7 Nos. of cheques. 3. Respondent as the complainant filed Complaint Case No. 4147/2010, in the Court of CJM, Aligarh, under section 138 of the NI Act against the petitioner No. 1 as the Proprietor of M/s. Glass Corner. It has been alleged that the opposite party (petitioner No. 1) had issued 6 cheques of Central Bank of India for Rs. 25,000/- each. Complainant had deposited the cheques in the Punjab National Bank, Railway Road Branch, Aligarh, but the cheques were dishonoured. The cheques were again presented to the said Bank which were returned back by the Bank on 16.07.2010 with the remark 'exceeds arrangement'. Notice was given to the opposite party through registered post on 13.08.2010. Since payment was not made, the complaint was filed on 01.09.2010. 4. The cheques were again presented to the said Bank which were returned back by the Bank on 16.07.2010 with the remark 'exceeds arrangement'. Notice was given to the opposite party through registered post on 13.08.2010. Since payment was not made, the complaint was filed on 01.09.2010. 4. Learned CJM recorded the deposition of the complainant under section 200 Cr.P.C. on 17.09.2010. Thereafter, order dated 02.11.2010 was passed by the learned CJM, Aligarh taking cognizance of the complaint under section 138 of the NI Act and issued summons to the petitioner No. 1 for appearance. 5. Aggrieved, petitioners have questioned the legality and validity of the aforesaid proceeding by filing the present writ petition. 6. There is no dispute to the proposition that a FIR or a complaint can be challenged in a petition under section 482 of the Cr.P.C. or by filing a petition under Article 226 of the Constitution of India. Since the present petition has been filed under Article 226 of the Constitution of India, we may briefly dilate on the broad parameters for invoking the writ jurisdiction. 7. Article 226(1) of the Constitution of India provides that every High Court shall have the power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including any Government within those territories, directions, orders or writs for enforcement of any of the rights conferred by Part-III of the Constitution of India and for any other purpose. Sub Article (2), however, clarifies that the power conferred by Clause 1 to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power notwithstanding that the seat of such Government or authority or residence of such person is not within those territories. 8. In other words, the High Court would have jurisdiction to issue directions, orders or writs to any Government, authority or person which may be outside its territorial jurisdiction if the cause of action or a part of it arises within its territorial jurisdiction. This aspect of the matter, has been elaborately explained by the Hon'ble Supreme Court in the case of Navin Chandra N. Majithia Vs. This aspect of the matter, has been elaborately explained by the Hon'ble Supreme Court in the case of Navin Chandra N. Majithia Vs. State of Maharashtra, reported in AIR 2000 SC 2966 , wherein their Lordships had also gone into the concept of 'cause of action'. 9. Having noticed the above, we may now refer to the complaint filed by the respondent. The complaint reads as under:- The Court of the Hon'ble Chief Judicial Magistrate, Aligarh, Case No. 4147 of 2010 Mohammad Quadir, S/o. Mohammad Sharif, Proprietor Monex Glass Pvt. Ltd., G.T. Road, Sarsaul, Aligarh....Complainant Vs. Sashikant, S/o. Shri Ramakant, aged about 42 years, Proprietor Glass Corner, S.C. Road, Athgaon, Guwahati, Assam. ...Accused/O.P Section 138 NI Act P.S. Bannadevi, Aligarh Your Honour The Applicant/Complainant states as follows: 1. That Complainant/Applicant is a Proprietor of Monex Glass Pvt. Ltd. and his firm is doing the work of manufacturing and the OP Sashikant is a proprietor of Glass Corner, S.C. Road Athgaon, Guwahati. 2. That the Complaint and the OP is having business relations since long. Due to which the Complainant and the OP were having transactions and had full faith. 3. That the OP came to the aforesaid address of the complainants firm on 12.04.2009 and gave the order of the goods as in the part. The complainant before writing the order had made clear to the OP that the payment of the goods would have to be made within 15 days otherwise after 15 days interest at the rate of 18% would have to be paid separately on the version of the Complainant and had gone by giving the assurance for the payments of the goods within 15 days. 4. That believing the version of the OP the complainant as per the order had dispatched the goods through Mallik Transport on 18.04.2009 vide Bill No. 0317, book No. 7 valuing 685900 (Rs. 6 lakhs eighty five thousand and nine hundred) and CST 2% for Rs. 13718 (Rupees Thirteen thousand seven hundred and eighteen) total Rs. 699618 and the OP had got the delivery of the same satisfactorily. 5. That the OP did not make the payments of the goods after expiry of the 15 days from the receipt of the goods. Then the complainant for the payment of the aforesaid good talked through his mobile many times. Then the OP had given 6 cheques Rs. 25,000 each being cheque Nos. 5. That the OP did not make the payments of the goods after expiry of the 15 days from the receipt of the goods. Then the complainant for the payment of the aforesaid good talked through his mobile many times. Then the OP had given 6 cheques Rs. 25,000 each being cheque Nos. 023673 dt. 09.01.2010 for Rs. 25000/-, 023671 dt. 19.12.2009 for Rs. 25000/-, 023676 dt. 09.01.2010 for Rs. 25,000/- 023677 dt. 02.03.2010 for Rs. 25,000/-, 023678 dt. 02.03.2010 for Rs. 25,000/-, 0023679 dt. 19.12.2009 for Rs. 25,000/- of Central Bank of Guwahati and gave the assurance that the cheque issued by me would be cleared on the date depicted over it surely. 6. That the complainant after believing the OP had deposited the cheques in the Punjab National Bank Branch, Railway Road, Aligarh which were dishonoured and returned back and the complainant has given the information to the OP. The OP had again given assurance that the cheques will cleared soon. 7. That the complainant after believing the OP had again presented the 7 Nos. of the cheques to the Punjab National Bank Branch, Railway Road Aligarh for payment of the aforesaid cheques which were again returned on 16.07.2010 with the remark 'Exceeds Arrangement'. 8. That the information of the non-payment of the cheques had been given to the OP through his advocate vide 'Registered Notice' on 13.08.2010 to the correct address which was given by the OP. The aforesaid Notice had been received by the OP. But the OP had neither made any payment for the said amount nor he has given any answer to it. 9. That the OP with the intention of the misappropriation of the money for the said goods of amount Rs. 6,99,618/- had given orders and after receiving the said goods had misappropriated the said amount of money for his personal use due to which the complainant has to face various financial as well as mental problems. 10. That the witnesses of the complainant are employee, document, transport company and its bank employees. As such that there is a prima facie case against the accused persons under NI Act. It is therefore, prayed that to call the accused after case and kindly punish him. 10. A perusal of the complaint would show that the orders for the goods were placed at Guwahati. As such that there is a prima facie case against the accused persons under NI Act. It is therefore, prayed that to call the accused after case and kindly punish him. 10. A perusal of the complaint would show that the orders for the goods were placed at Guwahati. The cheques issued were also of Guwahati i.e. Central Bank of India, Kumarpara Branch, Guwahati. If the averments made in the writ petition are accepted as correct, which in any case have gone unrebutted, since there is no denial by the respondent, then a large number of events which led to the filing of the complaint at Aligarh had taken place at Guwahati. Thus, it can be said that if not the whole, at least, a part of the cause of action arose within the territorial jurisdiction of this Court. Therefore, this Court would have the jurisdiction to entertain the present writ petition. 11. The six cheques, which have been alleged to have been dishonoured and which are the subject matter of Complaint Case No. 4147/2010, have been placed on record as Annexure Nos. 21 to 26 to this petition. A perusal of the said cheques would indicate that the said cheques were issued by the Proprietor of M/s. Glass Corner under Account No. CC-511 of Central Bank of India, Kumarpara Branch, Guwahati. Documents placed on record, including license of M/s. Glass Corner issued by the Guwahati Municipal Corporation, certificates of registration under Assam Value Added Tax Rules, 2005, Central Sales Tax (Registration & Turnover) Rules, 1957 and letter dated 04.02.2010 of Central Bank of India, Kumarpara Branch would clearly go to show that it is the petitioner No. 2 who is the proprietor of M/s. Glass Corner and not petitioner No. 1. The cheques in question were issued by the Proprietor of M/s. Glass Corner. On the face of the documents on record, petitioner No. 1, Sri Sashikant Prasad is not the Proprietor of M/s. Glass Corner. Thus the cheques were issued by petitioner No. 2 as Proprietor of M/s. Glass Corner and not by the petitioner No. 1. However, as can be seen from the complaint, it is the petitioner No. 1 who has been arrayed as the sole opposite party in the complaint case showing him as the Proprietor of M/s. Glass Corner. 12. Thus the cheques were issued by petitioner No. 2 as Proprietor of M/s. Glass Corner and not by the petitioner No. 1. However, as can be seen from the complaint, it is the petitioner No. 1 who has been arrayed as the sole opposite party in the complaint case showing him as the Proprietor of M/s. Glass Corner. 12. When the cheques were issued by petitioner No. 2 in his capacity of Proprietor of M/s. Glass Corner, the Proprietorship Firm, the complaint could not have been filed against the petitioner No. 1. Section 138 of the NI Act is quite clear. Action under the said section can be initiated only against the person who had drawn the cheque 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 of any debt. In the present case, it is quite evident that the cheques were not drawn by the petitioner No. 1 on an account maintained by him. In such circumstances, Court is of the view that the complaint proceeding against the petitioner No. 1 cannot be maintained and the same would be an abuse of the process of the Court. Having regard to the above, impugned proceeding in Complaint Case No. 4147/2010, pending in the Court of Chief Judicial Magistrate, Aligarh is hereby quashed. Writ petition is accordingly allowed. However, there shall be no order as to costs. Petition allowed