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2021 DIGILAW 364 (JK)

Girdhari Lal Sharma v. Bashir Ahmed Batt

2021-07-28

RAJNESH OSWAL

body2021
JUDGMENT : RAJNESH OSWAL, J. 1. The present petition has been filed by the petitioner for quashing the proceedings of the complaint titled Bashir Ahmed Batt vs. Girdhari Lal Sharma, pending disposal before the Court of learned Additional Special Mobile Magistrate, Doda (hereinafter referred to as ‘the trial Court’) and also the order dated 07.07.2017 by virtue of which the cognizance has been taken by the trial Court. 2. It is stated in the petition that the respondent has filed the complaint under Section 138 of the Negotiable Instrument Act before the trial Court that the petitioner herein had issued a cheque bearing No. 166449 dated 02.08.2016 for an amount of Rs. 1,80,000/- and the same has been dishonoured by the bank vide memo dated 04.10.2016 and thereafter despite notice dated 17.10.2016, the amount was not paid by the petitioner resulting into the filing of the complaint. It is further stated that without taking cognizance, the petitioner was summoned and as soon as the said fact came to the knowledge of the learned trial court, learned trial court took the cognizance of the complaint vide order dated 07.07.2017. The petitioner has prayed for quashing of the complaint as well as order dated 07.07.2017 on the following grounds: (a) That the respondent has no where pleaded that the amount payable is in discharge of the legal liability and in absence of the pleadings, the complaint is not maintainable. (b) That a serious prejudice has been caused to the legal rights of the petitioner, as the court has taken the cognizance after six months of the alleged cause of action and the learned Magistrate has exceeded its jurisdiction by taking the cognizance of the complaint beyond one month from the cause of action. (c) That the learned Magistrate has not recorded its satisfaction as to the commission of the offence and even no witness was examined by the respondent. 3. Mr. Nirmal Kotwal, learned counsel for the petitioner has reiterated the submissions made in the petition. 4. Reply stands filed by Mr. T.M Khan, learned counsel for the respondent in which factual aspects have been narrated and finally it has been prayed that the petition may be dismissed. 5. I have heard learned counsel for the parties, considered their submissions and perused the record. 6. 4. Reply stands filed by Mr. T.M Khan, learned counsel for the respondent in which factual aspects have been narrated and finally it has been prayed that the petition may be dismissed. 5. I have heard learned counsel for the parties, considered their submissions and perused the record. 6. From the record it is evident that as soon as it came to the knowledge of the trial court that the notice has been issued to the petitioner without taking the cognizance of the complaint, the learned trial Court vide order dated 07.07.2017 took the cognizance of the complaint for the first time. 7. For facility of reference, it would be apt to reproduce Section 200 Cr.P.C. hereunder: “200. Examination of complainant: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses: (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint. (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them.” 8. In view of the above, it is mandatory for the Magistrate to record the statement of the complainant or any other witness (if any) on oath before taking cognizance. 9. From the close scrutiny of the records also, this Court does not find any where that the statement of complainant was recorded by the learned Magistrate before taking the cognizance. As such on this ground alone, the order dated 07.07.2017 is required to be quashed. 10. 9. From the close scrutiny of the records also, this Court does not find any where that the statement of complainant was recorded by the learned Magistrate before taking the cognizance. As such on this ground alone, the order dated 07.07.2017 is required to be quashed. 10. So far as the contention of learned counsel for the petitioner for quashing the criminal complaint is concerned that it has no where been pleaded in the complaint that the cheque has been issued in discharge of liability, this court finds that there is positive averment made in the complaint with regard to the liability of the petitioner towards the respondent and as such, the said contention is rejected. 11. The other contention as raised by the petitioner that the Court could not have taken the cognizance beyond the period of one month from the cause of action is also misconceived because as per the mandate of Section 138 read with sec 142 of Negotiable Instrument Act, the complainant in the event of dishonor of cheque, has to issue notice calling upon the accused to make the payment in lieu of the dishonored cheque, within a period of fifteen days from the date of receipt of the notice and if the payment is not made with in the stipulated period of 15 days, then the complainant has to file a complaint against the accused with in the period of one month thereafter and if some delay has occasioned, the complainant can also seek condonation of delay. Limitation for filing complaint within one month after the expiry of period of 15 days as prescribed by the notice for making payment applies to the complainant only. As such, this contention of the petitioner is also misconceived. 12. In view of all what has been discussed above, the petition is partly allowed. The order dated 07.07.2017 is found to be un-sustainable in the eyes of law and as such, the same is quashed. The learned Magistrate shall pass fresh orders in accordance with Section 200 Cr.P.C. 13. The petition is, disposed of, accordingly along with connected applications.