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2024 DIGILAW 160 (HP)

Prem Dayal v. Surender Singh Deshta

2024-03-06

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla, J. The present petition is directed against the order 18.02.2022, passed by learned Judicial Magistrate, First Class, Court No.4, Shimla, vide which application filed by the petitioner (accused/applicant before the learned Trial Court ) seeking the dismissal of the complaint was rejected. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present petition are that the learned Trial Court summoned the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). When the accused appeared before the learned Trial Court, he filed an application under Section 138 (b) of the NI Act. He asserted that he belongs to a BPL family. He had taken Rs.30,000/- as a loan from Bhagat Ram Deshta, father of the complainant and handed over a blank cheque as security to him. The accused paid the aforesaid loan together with an interest to Bhagat Ram Deshta. He demanded the cheque but he was told that the cheque was washed away with the clothes and accused should not worry about the same. The accused believed this representation and did not take any steps for the return of the cheque. The cheque was misused by the complainant, who filled the amount in the blank cheque without the consent of the accused. The parties are not even known to each other, as the complainant is residing in Shimla. The accused did not receive any notice except the summons of the Court. The accused filed an application to supply the copies of the documents. However, copies of the documents were not supplied to him. Prosecuting the accused who belongs to a BPL family and resides at Rohroo is an abuse of process of Court. The father of the accused is Malku Ram, whereas the name of his father was mentioned in the complaint as Tika Ram, which falsifies the version of the complainant that the parties are known to each other. The complaint is not maintainable without serving a notice upon the accused. No legal notice was ever served upon the accused and the cause of action had not arisen to the complainant. Therefore, it was prayed that the present complaint be dismissed. 3. The application was opposed by the complainant denying the contents of the application. The complaint is not maintainable without serving a notice upon the accused. No legal notice was ever served upon the accused and the cause of action had not arisen to the complainant. Therefore, it was prayed that the present complaint be dismissed. 3. The application was opposed by the complainant denying the contents of the application. The learned Trial Court held that the complaint can be dismissed under Section 203 of Cr.P.C. when there is insufficient ground for proceedings against the accused and under Section 204(4) of Cr.P.C. on technical grounds. There is no other provision in the Code of Criminal Procedure or the Negotiable Instruments Act to dismiss the complaint. The question whether the notice was served upon the accused or not is related to the merits and the complaint cannot be dismissed on the ground that no notice was ever served upon the accused. 4. Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed, asserting that the notice dated 04.08.2016 was not received due to the wrong address mentioned in the notice. The documents were not supplied to the applicant-accused and no reply to his application under Section 207 of Cr.P.C. was filed by the complainant. The record was destroyed by the postal authorities after the expiry period of two years. The adjournment was granted subject to the payment of the cost of Rs.200/- and the cost was not paid. The reply could not have been taken on record without revising the earlier order. The acceptance of the reply by the learned Trial Court is illegal. The fact that the name of the father of the accused was wrongly mentioned, establishes that the parties are not known to each other. The service of the notice is essential, without which the complaint is not maintainable; therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court dated 18.02.2022 be set aside. 5. I have heard Mr. Bhag Chand Sharma, learned counsel for the petitioner and Mr. H.C. Sharma, learned counsel for the respondent. 6. Mr. Bhag Chand Sharma, learned counsel for the petitioner submitted that the learned Trial Court erred in dismissing the application. The reply to the application under Section 207 of Cr.P.C. was not filed. An adjournment was granted subject to the payment of cost. The cost was not paid. H.C. Sharma, learned counsel for the respondent. 6. Mr. Bhag Chand Sharma, learned counsel for the petitioner submitted that the learned Trial Court erred in dismissing the application. The reply to the application under Section 207 of Cr.P.C. was not filed. An adjournment was granted subject to the payment of cost. The cost was not paid. The reply could not have been taken on record. The non-issuance of the notice within a period of limitation is fatal; therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 7. Mr. H. C. Sharma, learned counsel for the respondent submitted that the learned Trial Court had rightly held that there is no provision for recalling the order of the summoning of the accused. The question whether the notice was served upon the accused or not, is a question of fact, which can only be adjudicated after leading the evidence. The application is pre-mature, therefore, the present petition be dismissed. 8. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 9. The accused filed the application to recall the order of summoning him and dismissing the complaint. It was laid down by Hon’ble Supreme Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338 , that there is no provision in the Cr.P.C. that empowers a Magistrate to recall the summons issued by him. The earlier judgment in Mathew's case [ (1992) 1 SCC 217 : 1992 SCC (Cri) 88], holding that the Magistrate has implied power to do so was overruled. It was observed:- 14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue a process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages, the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case [ (1992) 1 SCC 217 : 1992 SCC (Cri) 88] that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code on a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. 15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code. 10. This judgment was followed in Devendra Kishanlal Dagalia v. Dwarkesh Diamonds (P) Ltd., (2014) 2 SCC 246 , wherein it was observed:- 11. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code. 10. This judgment was followed in Devendra Kishanlal Dagalia v. Dwarkesh Diamonds (P) Ltd., (2014) 2 SCC 246 , wherein it was observed:- 11. The issue with regard to the power of the Magistrate to recall process of summons fell for consideration before a three-judge Bench of this Court in Adalat Prasad v. Rooplal Jindal [ (2004) 7 SCC 338 : 2004 SCC (Cri) 1927]. Therein the following observation was made by this Court: (SCC p. 343, para 15) “15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code.” 12. Section 201 CrPC, as noticed earlier, can be applied immediately on receipt of a complaint, if the Magistrate is not competent to take cognizance of the offence. Once the Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 CrPC, there is no question of going back following the procedure under Section 201 CrPC. In the absence of any power of review or recall the order of issuance of summons, the Magistrate cannot recall the summons in the exercise of power under Section 201 CrPC. The first question is thus answered in the negative and favour of the appellant. 11. Therefore, the learned Trial Court had rightly held that it had no jurisdiction to recall the order issuing the summons to the accused. 12. A grievance was also made during the arguments that an application under Section 207 of Cr.P.C. was filed for supplying the documents. The reply to the application was not filed and the adjournment was granted subject to the payment of the cost. 12. A grievance was also made during the arguments that an application under Section 207 of Cr.P.C. was filed for supplying the documents. The reply to the application was not filed and the adjournment was granted subject to the payment of the cost. The cost was not paid and the learned Trial Court erred in accepting the application without the payment of the cost. The order qua accepting the reply was not assailed in the present petition, therefore, it is not permissible to raise this argument. 13. Section 207 of Cr.P.C. applies to the proceedings instituted on a police report and not to a private complaint. Section 204(3) deals with the private complaint and reads that in proceedings instituted upon a complaint made in writing, every summons or warrant issued under sub-Section (1) shall be accompanied by a complaint. Thus, the accused is entitled to a copy of the complaint and no other documentsin a private complaint. It was laid down by the Bombay High Court in Bhalchandra G. Naik v. Suresh Melvani, 1999 Cri LJ 1908, that the accused is not entitled to the documents annexed to the complaint. It was observed:- “8. Section 204(3) which deals with the procedure to be followed upon issuance of the process, states that in a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. As rightly submitted by Shri G.R. Sharma, learned Advocate for respondent No. 1, the expression “complaint” has been defined in section 2(d) to mean any allegation made orally or in writing to the Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The Explanation to the said definition of the expression “complaint” provides that a report made by the Police Officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the Police Officer by whom such report is made shall be deemed to be the complainant. In other words, in terms of provisions of law as contained in the Code of Criminal Procedure, pursuant to the issue of summons, the accused is certainly entitled to have a copy of the complaint filed by the complainant. In other words, in terms of provisions of law as contained in the Code of Criminal Procedure, pursuant to the issue of summons, the accused is certainly entitled to have a copy of the complaint filed by the complainant. However, the complaint does not include the documents sought to be relied upon or referred to by the complainant. Being so, it cannot be said that a non-supply of copies of the documents sought to be relied upon would amount to any failure to comply with the required statutory procedure or that there is any abuse of process of the Court or there is any failure of justice as such.” 14. Therefore, the application was misconceived to begin with. 15. Section 309 of Cr.P.C. deals with the power of the Court to postpone or adjourn the hearing subject to such terms as it may deem fit. Explanation to the Section proves that terms on which the adjournment or postponement may be granted include the payment of the cost by the prosecution or the accused. This Section is silent regarding the consequences of non-payment of costs. A similar provision for awarding the cost exists in Section 35(B) of the CPC, which provides that in case the party obtains an adjournment or fails to take steps, the Court may make an order requiring such party to pay the cost to the other party and the payment of such cost on the next date of hearing, shall be a condition precedent to the further prosecution of the suit or the defence. Therefore, a specific provision has been enacted for non-payment of the cost. It was laid down by the full Bench of Punjab and Haryana High Court in Prem Sagar v. Phul Chand, 1983 SCC OnLine AIR 1983 P&H 398, that a party defaulting the payment of the cost cannot be debarred on the subsequent date from proceeding with the suit or defence. It was observed:- 16. To conclude, both on principle and precedent, as also on the language of Section 35-B, the answer to the question posed at the very outset is rendered in the negative. It was observed:- 16. To conclude, both on principle and precedent, as also on the language of Section 35-B, the answer to the question posed at the very outset is rendered in the negative. It is held that the party defaulting in the payment of costs on the date fixed for the payment thereof (on which date this issue is not at all raised) cannot on subsequent dates or dates be barred afresh from further prosecuting the suit or the defence, as the case may be. 16. Therefore, the party entitled to the cost has to demand the same on the next date of the hearing even when the consequences have been provided by the Act and the failure to demand the cost does not entitle it to ask the Court to follow the provision of Section 35(B) of CPC on the subsequent date of hearing. When the stringent provisions have to be complied with on the next date, it is difficult to see, how the consequences which have not been detailed in the Cr.P.C. could have been enforced on the subsequent date. Therefore, the grievance that the respondent-complainant could not have filed the reply without the payment of the cost and the learned Trial Court erred in accepting the reply cannot be accepted. 17. The learned Trial Court has rightly observed that the question of the service of the notice is a question of fact. The petitioner-accused has filed a copy of legal notice Annexure P-7 and the postal receipts which show that the notice was issued through registered AD. Whether it was served or not is to be determined by leading evidence. 18. It was laid down in C.C. Allavi Haji vs. Pala Pelly Mohd. 2007 (6) SCC 555 that the person who claims that he had not received the notice has to pay the amount within 15 days from the date of the receipt of the summons from the Court and in case of failure to do so, he cannot take the advantage of the fact that notice was not received by him. It was observed: “It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. It was observed: “It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of the complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran’s case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.”(Emphasis supplied) 19. Therefore, the accused cannot take advantage of the fact that he had not received the notice. 20. The reliance was placed upon the following judgments of the Hon’ble Supreme Court by the learned counsel for the petitioner: - K. Bhaskaran vs. Sankaran Vaidhyan Balan and another, (1997) 7 Supreme Court Cases 510; Rahul Builders vs. Arihant Fertilizers & Chemicals and another, (2008) 2 Supreme Court Cases 321; Kamlesh Kumar vs State of Bihar and another, (2014) 2 Supreme Court Cases 424; Deshrath Rupsingh Rathod vs. State of Maharashtra and antoher(2014) 9 Supreme Court Cases 129; Yogendera Pratap Singh vs. Savitri Pandey and another (2014) 10 Supreme Court Cases 713; and H. N. Jagadeesh vs R. Rajeshwari, (2019) 16 Supreme Court Cases 730. 21. However, none of these judgments applies to the present case. 22. 21. However, none of these judgments applies to the present case. 22. In K. Bhaskaran’s case (supra), the ingredients of Section 138 of the Negotiable Instruments Act were explained. In Rahul Builders’s case (supra), it was held that an omnibus notice without specifying the amount due is not proper, which is not the case here as it is not stated that the amount mentioned in the cheque was not mentioned in the notice. In Kamlesh Kumar’s case (supra) the question was regarding the limitation to issue the notice, which is not in dispute in the present case. In Deshrath Rupsingh Rathod’s case (supra), the Hon’ble Supreme Court was concerned with the territorial jurisdiction of the Court before which the complaint had to be filed. In Yogendera Pratap Singh’s case (supra), the question was whether the complaint could be filed before the expiry of 15 days from the date of notice or not. In H. N. Jagadeesh’s case (supra),it was held that in the absence of service of notice, the complaint is not maintainable. In the present case, admittedly the notice was issued and the question is only of the service. Therefore, no advantage can be derived from the judgments cited on behalf of the accused. 23. Therefore, the finding recorded by the learned Trial Court that the question of service of notice is related to the merits of the case cannot be faulted and the learned Trial Court had rightly dismissed the application. 24. Learned counsel for the petitioner relied upon the judgements of the Hon’ble Supreme Court to explain the meaning of cognizance, however, the order taking cognizance has not been assailed, therefore, these judgments are not relevant and need not be discussed. 25. No other point was urged. 26. In view of the above, the present petition fails and the same is dismissed. Record of the learned Courts below be returned. The parties through their respective counsel are directed to appear before the learned Trial Court on 26.03.2024. 27. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.