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Rajasthan High Court · body

2015 DIGILAW 792 (RAJ)

Padam Chand Jain v. Gopal Lal Jain

2015-04-08

M.N.BHANDARI

body2015
ORDER:— By this criminal misc. petition, a challenge is made to the order dated 25th February, 2015, by which, application submitted by the petitioner was dismissed. 2. Learned counsel submits that an order of cognizance of offence under Section 138 of Negotiable Instruments Act, 1881 (for short 'NI Act' ) was taken by the Court against the petitioner and M/s. Naveen Automobile. A petition under Section 482 of Cr. P. C. was filed before this Court to challenge the said order. It was disposed of with liberty to the petitioner to file an application before the Court below and if such an application is filed, the Court would consider it. In pursuance to the liberty given by the Court, an application was submitted to quash the order of cognizance, however, it was dismissed vide the impugned order. 3. It is stated that on the date of the cheque, the petitioner was not the part of M/s. Naveen Automobile, thus cognizance of offence should not have been taken against him. A document has been submitted to show as to who was the Proprietor of the Firm at the relevant time. It is further stated that M/s. Naveen Automobile has been made as party accused, however, neither complete address has been given nor it is represented through someone. In view of the above, order of cognizance of offence against the firm deserves to be set aside. 4. A reference of judgment of Hon— ble Apex Court in the case of Anita Malhotra v. Apparel Export Promotion Council & Anr. reported in (2012) 1 SCC 520 : ( AIR 2012 SC 31 ) has been given. It is further stated that cheque of Rs. 50,000/- was taken from the petitioner forcefully and thereafter, amount was filled in the cheque, thus looking to the aforesaid fact also, the complaint is not maintainable so as the order of cognizance of offence. 5. Learned Public Prosecutor has opposed the petition. 6. I have considered the submissions made by learned counsel and find that on a complaint under Section 138 of NI Act, cognizance of offence was taken by the Court below. A petition under Section 482 of Cr. P C. was filed to challenge the order of cognizance. It was disposed of with liberty to the petitioner to make an application before the Court below. A petition under Section 482 of Cr. P C. was filed to challenge the order of cognizance. It was disposed of with liberty to the petitioner to make an application before the Court below. It is not necessary to state that Court below is having no power to review its own order, as barred by Section 362, Cr. P. C. In any case, when the direction was given by the High Court, the application was considered and finding no substance, it was dismissed. 7. The case of the petitioner is that cheque was taken forcefully from him and amount was filled thereupon. The fact aforesaid is not coming out from the document, rather it can be a defence and can be taken by leading evidence. 8. The argument is in reference to the registration certificate of the firm has also been raised where Mr. Ashok Kumar is shown to be proprietor. It is of March, 2006 and after death of Mr. Naveen Kumar. It would be necessary to clarify that petition has been filed by the petitioner Padam Chand Jain and not by the firm so as to refer the document aforesaid and in any case, the cheque was issued on 08th October, 2009 by the petitioner, though said to have been taken forcefully but the issue aforesaid can be decided in trial. It is not that petitioner did not issue the cheque. The only allegation is that it was taken forcefully and then amount was filled. It has already been clarified that issue aforesaid can be decided by the evidence and cannot be considered and decided at the time of taking cognizance of the offence. 9. In the facts and circumstances of the case, I do not find any illegality in the impugned order. Accordingly, this criminal misc. petition is dismissed. 10. So far as the issue pertaining to firm is concerned, it would obviously be considered by the Court at the appropriate stage, if it is not arrayed with address and representative, obviously consequences would follow. Petition dismissed.