Judgment 1. The petitions detailed above raised common and akin questions of facts and law and have therefore been clubbed together for common decision. 2. Filed under Section 561-A Cr. PC, the petitioners crave the indulgence of this court in quashing the order dated 03-05-2018 (for short impugned order) passed by the learned Magistrate by virtue of which learned Magistrate has taken cognizance of the matter and directed issuance of process against the petitioners under Section 138 Negotiable Instrument Act read with Section 420 Ranbir Penal code 3. Facts giving rise to the filing of the instant petitions as referred by the petitioners are that:— (i) The respondent (Shri Anil Bhan) on the strength of the cheques bearing No. 000142 payable at HDFC Bank dated 01-01-2017 for an amount of Rs 20 lacs, cheque bearing No. 110240165 payable at HDFC Bank dated 01-01-2017 for an amount of Rs 02 crores and cheque bearing No. 000141 payable at HDFC Bank dated 01-01-2017 for an amount of Rs 35 lacs presented the same before the banker i.e. J&K Bank Branch High Court complex Srinagar and sought its payment. The respondent (Anil Bhan) on the strength of the memo received from the bank about non-availability of the funds on the required date proceeded to file a complaint under Section 138 Negotiable Instrument Act read with Section 420 Ranbir Penal code. (ii) The case set up by the respondent (Shri Anil Bhan) as contended in the body of the complaint is that he had entered into an agreement with the M/s Spectratek Exclusive Print (India) Pvt. Ltd in terms whereof he was entitled to receive legal fee towards rendering of professional services to the accused company. The complainant has further contended that the total monthly emoluments/retainer-ship payable in his favour on account of rendering legal advice and professional services was fixed at Rs. 4+4+2 lacs per month and in this connection reliance was placed upon three agreements details whereof are indicated as under:— (a) Spectratek Exclusive print retainer ship fee was Fr. 4 lacs per month from 01-01-2014 to 31-01-2015. (b) Spectrum Techno Projectes fees was Rs. 4 lacs from 01-01-2015 to 31-12-2015. (c) Spectrum Techno projects retainer-ship fee was Rs. 2 lacs from 01-04-2015 to 31-03-2016. 4 lacs per month from 01-01-2014 to 31-01-2015. (b) Spectrum Techno Projectes fees was Rs. 4 lacs from 01-01-2015 to 31-12-2015. (c) Spectrum Techno projects retainer-ship fee was Rs. 2 lacs from 01-04-2015 to 31-03-2016. (iii) The complainant further contended that the accused companies had through its Director Pankaj Jangira agreed to pay the monthly remuneration towards the retainer-ship at rate of Rs. 02 lacs per month but no written agreement supporting that contention was placed on record or referred to. The complaint further contended that part of the money towards retainer-ship fee was paid to him and upon computation an amount of Rs. 03 crores remained unpaid by the accused towards retainer-ship fee payable to the complainant. The complainant further contended that the settlement was arrived at with accused Pankaj Jangira in the first week of September 2016 in presence of one Lalit Bhaderwaj who is one of the Directors of the company. It is further alleged that the amount settled for payment was fixed at Rs. 3.25 crores payable to the respondent No. 5 on account of outstanding fee towards retainer-ship and legal fee. It is further contended that accused Pankaj Jangira had issued two cheques one of Rs. 02 crores and another for Rs. 35 las to liquidate the liability arising of the balance amount towards retainers-ship and legal fee. (iv) It is submitted that prior to the filing of the complaint pending adjudication before the court of Chief Judicial magistrate, Srinagar the respondent no. 5 (Anil Bhan) had filed an identical complaint before the Judicial magistrate Srinagar and issuance of process by the Judicial Magistrate was called in question before this Court in proceedings under Section 561-A Cr. PC. This court while considering the matter came to the conclusion that the complaint had been filed pre-maturely as the time prescribed under Negotiable Instrument Act for filing a complaint post issuance of notice of demand had yet to expire, therefore while quashing the complaint on 04-04-2018, the complainant was allowed to file fresh complaint in accordance with the law. (v) Being so, it was kept open for the complainant to have institute a complaint after securing extension in time/condonation of delay in filing the complaint as provided under the Act. (v) Being so, it was kept open for the complainant to have institute a complaint after securing extension in time/condonation of delay in filing the complaint as provided under the Act. The complainant instead of complying with the statutory requirement proceeded to file the complaint without seeking extension in time so as to explain the delay in filing the complaint. The complainant instead made a casual reference in the body of the complaint that he had been allowed to file fresh complaint. The complainant on his own stated that he was permitted to file the complaint within one month which fact is not borne out by the order passed by this court while quashing the complaint. (vi) That the complainant had proceeded to file the complaint and the trial court without considering the import of judgment passed by this court quashing the earlier complaint proceeded to take the cognizance and issuance of process. 4. The impugned order according to the petitioners is bad on the following grounds:— (i) That the trial Magistrate lacked jurisdiction to entertain the complaint in absence of filing of/ separate motion for seeking of condonation of delay/extension of time for filing the complaint within the prescribed period of one month from the date of receipt of notice of demand. The complainant was required to explain before the trial magistrate the reasons which prevented him from approaching the court within the prescribed time. the complainant having not done so, it was not open for the trial Magistrate to have considered the complaint for taking cognizance or issuance of process. The entertainment of complaint as also issuance of process is therefore bad in law. (ii) That the trial magistrate has not applied its judicial mind to the averments made in the body of the complaint particularly para No. 1 in terms whereof the petitioner Shalini Jangira shown as accused No. 3 in the complaint is shown to have ceased to be the Director of the companies in the year 2016 and the subject cheques are purportedly issued in the month of January 2017, therefore there was no occasion for the trial Magistrate for taking cognizance and issuing the process against the petitioner No. 2. (iii) That the subject cheques on the strength of which complaint has been filed has not been issued by Pankaj Jangira towards liquidation of any debt liability but the same has been procured by under hand means from the office of Spectrum Techno Projects when said Pankaj Jangira was out of country with connivance with one of the directors Lalit Bhaderwaj who was having business relations (investment/real estate) with respondent. (iv) That the amount claimed by the respondent (Anil Bhan) towards rendering of legal/professional services as retainers hip of he accused companies is based on fanciful imagination and does not appeal to common sense. It is submitted that whatever was due to respondent No. 5 on account of any investment made had been paid to him by transferring the amount in his account as also in the account of his wife and daughter. The factum of payment of huge amount to respondent (Shri Anil Bhan) is in fact relatable to the commitment made by him in generating and procurement of investments up to 15 crores upon payment of commission as had been settled between the respondent (Shri Anil Bhan) and Lalit Bhaderwaj, therefore the petitioners have been illegally and improperly implicated as accused and filing of complaint is being made as an effective tool for black mailing the petitioners. (v) That taking of cognizance by the trial court against the petitioners under Section 138 read with Section 142 of Negotiable Instrument Act read with Section 420 Ranbir Penal code is in gross violation of law and without their being any material and trial Magistrate has issued process under Section 420 Ranbir Penal code which speaks volumes about the manner and mode in which the process has been issued therefore order as well as complaint needs to be quashed. 5. Learned counsel for the petitioners has submitted that having regard to the averments made in the petition herein, and the judgment passed by this court on 4-04-2018, the complaint presented on 3-05-2018, can be safely stated being an abuse of process of the law. The complainant could not present the complaint afresh as the statutory period of one month had already elapsed is also canvassed. The complainant could not present the complaint afresh as the statutory period of one month had already elapsed is also canvassed. After the service of the notice referred to in the petition and earlier petition at the most in case the respondent (Anil Bhan) was desirous to file complaints, he had to lodge a petition for condonation of delay, before the Magistrate who took cognizance in the matter and the Magistrate was required to issue a notice for condoning of delay in presentation of the complaint is also the plea of the learned counsel. He has in this regard referred to judgment of Hon’ble Apex Court in case titled State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Ors (1995) 1 SCC 42 wherein their lordship have observed in para 5 that the delay, if any, for launching prosecution having been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay was not proper. It is also his submission that para 6 of the complaint makes it amply clear that liability, if any, there was, was in the nature of corporate one and the present petitioners could not be held vicariously liable for the action of company. Section 141 of the Negotiable Instruments Act has also been referred to canvass that the petitioners herein have no liability in terms of the complaint. The allegations levelled against the petitioners herein were also improbable in nature and did not furnish basis for taking the cognizance. Reference has also been made to the Section 139-145 of the Negotiable instruments Act. 6. Learned senior counsel Mr. Jan appearing for the respondent (Anil Bhan) has submitted that the petition has been properly filed and the cognizance too has been rightly taken against the respondents. The purport of Section 561-Cr. PC is not according to him, to cover cases of present nature where there was sufficient material available on record for taking cognizance. Reference has been placed on the judgment of the Hon’ble Apex Court in Amit Kapoor Vs. Ramesh Chander and anr (2012) 9 Supreme Court Cases 460 wherein their Lordships have enunciated that the final test of guilt is not to be applied initially. It has been also observed that mere existence of civil dispute would not by itself alter the allegation constituting the criminal offence. Ramesh Chander and anr (2012) 9 Supreme Court Cases 460 wherein their Lordships have enunciated that the final test of guilt is not to be applied initially. It has been also observed that mere existence of civil dispute would not by itself alter the allegation constituting the criminal offence. The presumption is to be drawn in favour of the holder of the cheques that he received the cheques of the nature referred, in whole or in part of debt or any other liability. Liability of all concerned who were at the helm of affairs at the relevant time when transaction took place is clearly deducable from the relevant provision of Act is being also canvassed. 7. Considered the rival arguments. 8. It may requires to be underlined herein that in petition earlier moved the cognizance taken on the complaints filed by the respondent (Shri Anil Bhan) was challenged. The complaints were contended to be premature and having been filed before the expiry of stipulated period of 15 days as provided in the statute. The court after taking into consideration the principles of law laid down by the Hon’ble Apex Court opined that the same are premature and therefore the orders impugned were quashed. It was observed that it would be open for the respondents to file fresh complaints before the competent court of jurisdiction in accordance with law. Registry was also directed to hand over the original documents, if any, to the complainants/ respondents after returning Xerox copies thereof. The order has been announced on 4th April 2018 and the Registry had forwarded the copy of the order together with documents consisting of 29 leaves along with the cheques in original for being handed over to the respondents vide No. 15918 dated 01-05-2018. The complainant appears to have approached learned trial Magistrate on 3rd May 2018 with the fresh complaint stating also there, that the cheques could not be encashed due to reasons mentioned in the complaint i.e. (“insufficient funds in account”). Learned CJM while taking cognizance in the complaints made a passing reference about scope for filing of same within a period of one month. Same as rightly had been contended by the learned counsel for the petitioners not borne out from record. 9. Be it so, grievance mainly focused in this petition are that:— 1. Learned CJM while taking cognizance in the complaints made a passing reference about scope for filing of same within a period of one month. Same as rightly had been contended by the learned counsel for the petitioners not borne out from record. 9. Be it so, grievance mainly focused in this petition are that:— 1. Complaint could not be entertained unless it was accompanied by separate motion for condoning of delay/extension of time. 2. Non application of mind on the part of the learned Chief Judicial Magistrate in particular with regarded to Shalini Jangiri shown as accused No. 3 in the complaint and had been ceased to be Director of the company in the year 2016 and subject cheques were issued in the month of January 2017. 3. Cheques have been procured under head M/s Spectrum Techno Projects Private Limited when Pankaj Jangira was out of country with signature of another Director Lalit Bhardwaj who was having business relations with the respondent (Anil Bhan). The amount claimed for rendering professional service was a fanciful imagination 10. In my opinion, the contention raised on behalf of the petitioners that the complaint ought to have been accompanied by the petition for condoning of the delay and petitioners herein had to be first heard on issue of delay does not carry any force. The judgment titled State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Ors (1995) 1 SCC 42 referred by the learned counsel for the petitioners is not applicable to the instant case as same has been given in different set of facts. 11. The concluding observation in the order passed by Coordinate Bench while quashing cognizance in earlier filed complaint, laid an obligation on the Registry to detach the necessary documents from the record and to hand over them to the complainant. This was directed to enable the complainant to file complaints afresh. This exercise has been initiated n 1st May 2018 by the Registry and the complaint has been immediately thereafter presented on 03-05-2018. It is settled principle of lawl that the act of the Court should not prejudice anyone. Legal Maxim applies Actus Curiea Neminem Gravabit: No man should suffer because of the fault of the court or delay in procedure. It cannot be stated that there was delay, which required to be dealt separately. It is settled principle of lawl that the act of the Court should not prejudice anyone. Legal Maxim applies Actus Curiea Neminem Gravabit: No man should suffer because of the fault of the court or delay in procedure. It cannot be stated that there was delay, which required to be dealt separately. The Coordinate Bench while disposing of the petition has not fixed any time limit for presentation of the cheques and so had to be presented within a reasonable time frame. 12. The argument of the learned counsel for the petitioners that since period of 15 days (as contemplated by Section 138 of the Act for presentation of the cheques, after notice was received by the accused), could never mature or could be conceived would mature (due to pendency of proceedings before High Court) complaints could not be filed, also appears to be fallacious. The arguments, if accepted would lead to a sheer absurdity, in interpreting Section 138 of the Negotiable instruments Act. Cognizance taken by learned Magistrate could not be thus faulted with on this count so. 13. There was neither a need to file a motion for condoning delay nor learned Magistrate had to forbear from taking cognizance. For this, the plea raised on behalf of the petitioners by learned counsel is thus turned down. 14. Contention about the insufficiency of the material is also termed to be devoid of any merit as at the time of taking the cognizance The Magistrate is not to weigh the material in golden scales, it is clearly enunciated by this Court in case titled Ab. Samad Nagu Vs. Ab. Rehman Khanday and anr. reported in JK Law Reporter 1980 (XI) 486 (Per Mufti Bahaudin, Acting CJ). It may also need an addition here that their Lordships of Hon’ble Apex Court in case titled Nupur Talwar vs CBI and Anr AIR 2012 SC 1921 have held that at the stage of issuance of process, the Magistrate is not required to weigh the evidence meticulously as if it was the trial court nor is it required to be scrutinize the evidence by same standard by which the trial court scrutinizes the evidence at the time of framing of charge. 15. The counter version given in terms of the petition about the background for filing of complaints cannot become a ground for invoking the jurisdiction under Section 561 A Cr. PC. 15. The counter version given in terms of the petition about the background for filing of complaints cannot become a ground for invoking the jurisdiction under Section 561 A Cr. PC. The powers under Section 561-A Cr. PC has to be exercised sparingly, carefully and with circumspection and that too only in the cases covered under the said provision. 16. The transaction referred in the complaints have genesis in the year 2013 and is carried over till December 2016. Non- involvement anyone from the petitioners on the count that he/she ceased to be Director of the Company in January 2017 could not be excepted would fall for determination the learned Chief Judicial Magistrate at the time complaints were presented before him for consideration and when he issued the process. The averments of the complaints did not point out anyone from the petitioners having ceased their relationship with the company at the relevant time. The complainant has stated that Shri Pankaj Jangira and Nishant Khandwel were Directors of the Company at relevant time when the cause of action accrued. There is allegation also that both of them had represented to the complainant that they are jointly or severally Directors and shareholders of the company. 17. Section 141 of the Negotiable instruments Act primafacie makes every person incharge and responsible to the company for conduct of the business of the company liable and so the plea taken to treat the complaint non est on this count deserves to be rejected and is rejected thus. May be at an appropriate time, it may have to be examined by trial Magistrate if pleaded so. 18. For this I am of the opinion that no ground is made out for quashing the complaint or the cognizance taken or process issued there upon. Any of the defences put forth here in terms of the instant petition may be taken subject to just exception by the petitioners herein before the trial Magistrate at the relevant time including the legal or technical pleas and the said Magistrate may accordingly deal with it under law. Dismissed.