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2017 DIGILAW 1098 (RAJ)

Vipin Davar s/o Madan Lal v. Kalyani Advertisers

2017-04-27

PUSHPENDRA SINGH BHATI

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ORDER : Dr. Pushpendra Singh Bhati, J. 1. This criminal misc. petition under Section 482 Cr.P.C. has been preferred against the order dated 24.04.2012 passed by learned Additional District & Sessions Judge No.1, Sri Ganganagar in Criminal Revision No.69/2011, whereby the revision petition filed by the petitioner has been dismissed, upholding the order dated 10.06.2008 passed by learned Additional Chief Judicial Magistrate, Sri Ganganagar in Complaint Case No.1093/2009 (552/2008 Old), whereby cognizance for the offence under Section 138 of the Negotiable Instruments Act was taken against the petitioner. 2. A complaint was filed against the petitioner under the provisions of Section 138 of the Negotiable Instruments Act, 1881 on 29.03.2008 with the allegation that the petitioner is the proprietor of M/s.Ujjas Advertisement, Ludhiana and he issued two cheques towards discharging the liability against him. Cheque No.463440 dated 15.08.2007 for Rs.60,000/- and Cheque No.463441 dated 20.08.2007 for Rs.60,000/- drawn on Allahabad Bank under his seal and signatures with the assurance that the said cheques were to be honoured. Upon the cheques being dishonoured on 11.02.2008 on account of stop payment, the case was instituted and notices were issued against the petitioner, and bailable warrants were issued and cognizance order was passed against the petitioner on 10.06.2008. The petitioner challenged the cognizance order principally on the ground that he was not the proprietor of the Firm M/s. Ujjas Advertisement or signatory of the cheques in question, and thus, was not having the liability as per the provisions of Section 138 of the Negotiable Instruments Act. 3. On one hand, the revisionary court has rejected the revision petition, but has simultaneously held that the cheques have been signed by Madan Lal Davar. The petitioner had produced copies of the certificates issued by the Allahabad Bank dated 12.04.2012 and 18.04.2012, which are also part of the record of the present case, whereby the Allahabad Bank, which is a nationalized bank, has issued the certificates to the effect that the petitioner is not the proprietor of the Firm concerned, but Madan Lal Davar is the proprietor of the Firm, as per the records of the Bank. Thus, any further proceedings emanating from the cognizance order would be rendered redundant, in view of the apparent fact that the petitioner was not the issuing authority, and as per the record, was not having any capacity as proprietor in the Firm concerned. Thus, any further proceedings emanating from the cognizance order would be rendered redundant, in view of the apparent fact that the petitioner was not the issuing authority, and as per the record, was not having any capacity as proprietor in the Firm concerned. It will be an abuse of the process of law to continue with the proceedings, whereby a wrong person is prosecuted under the Negotiable Instruments Act, whereas the person responsible would not have any liability. 4. In light of such facts being submitted by the learned counsel for the petitioner and the same being brought on record, it is clear that any trial against the present petitioner-Vipin Davar would ultimately fail, as he is neither the proprietor of the Firm concerned nor the signatory of the cheques in question. The technicality in law would defeat the very purpose of the law and justice cannot be handmaiden of such law, as this Court has perused the signatures on the cheques as well as the signatures of Madan Lal Davar attested by the Allahabad Bank, and thus apparently, it is clear that the signatures, as attested by the Allahabad Bank, of Madan Lal Davar are exactly the same, which are there on the cheques in question. Thus, any proceeding in this direction, which would ultimately lead to a futile litigation, would definitely be an abuse of the process of law. 5. Learned counsel for the respondent/complainant however, submitted that in case the petition succeeds, then the liability, which was there upon M/s. Ujjas Advertisement shall fall, as the actual culprit will go scot-free. Learned counsel for the respondent also submitted that the total transaction between the petitioner and the respondent/complainant was conducted by Vipin Davar, and it was Vipin Davar, who apparently made it look as if the signatures belongs to him, and he was the proprietor of the Firm concerned. 6. After hearing the learned counsel for the parties and perusing the record of the case, this Court is of the opinion that the cognizance order as well as the revisionary order have to be quashed and set aside, and simultaneously, protection has to be given to the respondent/complainant, so that he is able to exercise his rights in law for taking appropriate action against father of the petitioner, namely, Madan Lal Davar. The protection is also necessary, because although technically the signatory is responsible, but here is a case, where it seems that the father and son, namely, Madan Lal Davar and Vipin Davar are using the technicality to defeat the very purpose of the law. 7. Thus, while quashing and setting aside the impugned orders dated 10.06.2008 and 24.04.2012, this Court deems it appropriate to give complete liberty to the respondents to proceed against Madan Lal Davar in the same set of case. The learned trial court shall substitute the name of Madan Lal Davar instead of Vipin Davar in the proceedings and decide the issue of cognizance afresh, after giving him an opportunity of hearing. However, it is made clear that the technicalities of the Negotiable Instruments Act shall not debar the respondent from resorting to the remedy under the Negotiable Instruments Act against Madan Lal Davar. If Madan Lal Davar has issued the cheques in question and is responsible for the payment, then the learned trial court shall consider the same and without going into the other necessities/ technicalities of the Negotiable Instruments Act, including the mandatory notice, the court shall proceed to initiate the proceedings under Section 138 of the Negotiable Instruments Act against Madan Lal Davar, the father of the present petitioner-Vipin Davar, after giving him opportunity of hearing. 8. With the aforesaid observations and directions, the present misc. petition stands disposed of. The stay application also stands disposed of.