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2014 DIGILAW 149 (JK)

Vijay Kumar Sharma v. Singh Traders

2014-04-02

TASHI RABSTAN

body2014
1. Since common questions of law and facts are involved in both the petitions, therefore, I deem it proper to dispose of both the petitions by this common judgment. 2. By the medium of both these petitions, the petitioner is seeking quashment of complaints filed by the complainant-respondent herein before the learned trial Court and also orders dated 02.12.2013 and 30.09.2013, whereby the learned trial Court has taken cognizance upon the said complaints. 3. The petitioner herein issued two Cheques in favour of complainant-respondent, bearing No. 491079 dated 17.08.2013 for an amount of Rs.26,27,000/- and No.491080 dated 27.08.2013 for an amount of Rs.25,00,000/- drawn on the State Bank of India, Branch Karan Market, Jammu. Respondent presented the said cheques for encashment and the same were dishonoured on the ground `refer to drawer' vide memos dated 30.08.2013. 4. Complainant-respondent sent legal notices to the petitioner herein asking him to make the payment of the cheques. Since the petitioner failed to make the payment, complainant-respondent filed two complaints against the petitioner before the learned trial Court under Section 138 of the Negotiable Instrument Act. The learned trial Court accordingly took cognizance upon the complaints vide orders dated 02.12.2013 and 30.09.2013. The petitioner feeling aggrieved is questioning the same by the medium of present petitions. 5. The sole ground of challenge to the cognizance taken by the learned trial Court is that the learned trial Court has not properly appreciated Section 138 of the Negotiable Instrument Act (hereinafter, for short, the Act). It is contended that the learned trial court before taking cognizance under the Act should have considered two most essential ingredients of the offence in question, i.e., the cheques-in-question must have been issued by the accused from his account maintained in a bank in favour of complainant and, (2) the cheques-in-question must have been returned unpaid by the Bank of the accused on account of insufficiency of funds in the Bank account of the accused. Further it is contended that both the ingredients of the offence-in-question are not clearly and specifically spelt out in the complaints nor there is any specific allegation alleged in the complaints, therefore, the complaints are not maintainable. 6. The petitioner's sole contention is that the cognizance taken by the learned trial Court is against the spirit of Section 138 of the Act by not properly following the ingredients of the Section. 6. The petitioner's sole contention is that the cognizance taken by the learned trial Court is against the spirit of Section 138 of the Act by not properly following the ingredients of the Section. Thus, he seeks quashment of the cognizance taken by the learned trial Court. 7. It is not disputed by the parties that the cheques-in-question were issued by the petitioner in favour of respondent. It is also not disputed that the concerned Bank had issued memos dated 30.08.2013 on the ground `refer to drawer'. Petitioner has also not denied that the amount of the cheques was not paid to the respondent. The only ground taken by the petitioner is that the learned trial Court has not properly followed the provisions of Section 138 of the Act. 8. Reply has not been filed on behalf of respondent. Mr. Bhatia, learned counsel appearing on his behalf stated that since the issue involved in both the petitions is legal one, therefore, he does not want to file reply and is ready to argue the matter. 9. Heard, considered and perused the file. 10. Learned trial Court vide orders dated 02.12.2013 and 30.09.2013 while taking cognizance had considered the preliminary statement of the complainant recorded on oath, besides the documents annexed with the complaints and the judgment passed by the Apex Court reported in AIR 1996 SC 2339 . 11. The issue has already been set at rest by three Judges Bench of the Apex Court in case, titled as, M/s. Modi Cements Ltd. v. Kuchil Kumar Nandi, reported in AIR 1998 SC 1057 , in which the Apex Court has discussed in detail the law laid down including the judgment referred to by the learned trial Court, paragraph 21 whereof is reproduced hereunder: It is needless to emphasize that the Court taking cognizance of the complaint under Section 138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly gets an opportunity under Section 139 of the Act to rebut the presumption at the trial. It is for this reason we are of the considered opinion that the complaints of the appellant could not have been dismissed by the Court at the threshold." 12. The drawer of the cheque undoubtedly gets an opportunity under Section 139 of the Act to rebut the presumption at the trial. It is for this reason we are of the considered opinion that the complaints of the appellant could not have been dismissed by the Court at the threshold." 12. The next contention of the petitioner is that the respondent has also filed another complaint against him for the same transaction; therefore, both the complaints are not maintainable. 13. It is no more res-integra that the powers under Section 561-A Cr.P.C. is permissible rarely in exceptional circumstances, i.e., when there is a chance of abuse of the process of the Court or there is a chance of failure of justice. No such exceptional case has been made out which would warrant quashing of the proceedings. 14. While perusing the cheques, it transpired that it cannot be said that the respondent has filed another complaint for the same transaction because the amount of the cheques as well as the numbers and dates of the cheques are different. Therefore, it cannot be said to be the same transaction. However, petitioner is at liberty to agitate this issue before the trial court and I leave it at the wisdom of the trial court to deal with the same. 15. In view of the settled law laid down by the Apex Court and the discussion made hereinabove, both the petitions are found to be without merit and the same are, accordingly, dismissed along with connected Cr.M.As. Trial Court shall not be influenced by any of the observations made here in deciding the matter on its own merits. 16. Send down the record of trial Court along with a copy of this order.