At, High Court of Punjab and Haryana
By, THE HONOURABLE MR. JUSTICE P.K. JAIN
For the Appearing Parties: Ajay Tiwari, Amit Rawal, Advocates.
(1) M/s. Garg Forgings and Castings Ltd. , an incorporated company carrying on business at Ludhiana and two others have filed a petition under Sec. 482 of the Code of Criminal Procedure for quashing a complaint dated 8-3-1995 (Annexure P-1) filed by the respondent company, the summoning order dated 3-4-1995 (Annexure P-9) passed by the Judicial Magistrate, Chandigarh and the subsequent proceedings in pursuance thereof.
(2) THE facts necessary for the appreciation and disposal of this petition are that the respondent company has filed the complaint (Annexure P-1) under S. 138 of the Negotiable Instruments Act, 1981 against the petitioners. It has been stated in the complaint that the respondent used to supply material to the petitioner company on credit basis. On 1-6-1994 a sum of Rs. 24,61,440. 84 (approximately) was outstanding against the petitioners for the supply of material at different times. The petitioners, in order to discharge their liability to pay the partial payment of the said amount issued cheque No. 403074 dated 30-12-1994 for Rs. 2,34,140/- payable at State Bank of Patiala, Partap Chowk, Ludhiana which was signed by petitioners Nos. 2 and 3 jointly. This cheque was issued vide letter dated 3-12-1994 in lieu of the old cheque No. 395687 dated 10-8-1994 for the same amount along with other post dated cheques amounting to Rs. 21,18,020/ -. Presentation of the cheques was extended from time to time due to the inability of the petitioners to honour the same. The respondent presented the cheque in question bearing No. 403070 dated 30-12-1994 through its bankers State Bank of Patiala, Miller Ganj, Ludhiana for payment but the same received back dishonoured with remarks "payment Stopped by Drawer" and on enquiry made by the respondent company from the bank, it was found that there were insufficient funds in the account of the petitioners to honour the said cheque. Demand notices dated 8-2-1995 were issued in respect of the said dishonoured cheque calling upon the petitioners to make payment within fifteen days of the receipt thereof. In spite of the service of the notice, the petitioners failed to make the payment. Accordingly the complaint in question was filed on 8-3-1995. It was alleged in the complaint that the court at Chandigarh had the jurisdiction to try this complaint since the order for the supply of the material was placed at the Head Office of the respondent company located in Sector 26, Madhya Marg, Chandigarh.
(3) AFTER recording preliminary evidence in support of the complaint, the Judicial Magistrate vide order dated 3-4-1995 (Annexure P-9) summoned all the three petitioners to face trial for an offence under S. 138 of the Negotiable Instruments Act.
(4) THE petitioners have challenged the competency and maintainability of the complaint in question mainly on two grounds i. e.
(1) that the Court at Chandigarh has no jurisdiction to entertain the complaint in question and take cognizance of the offence inasmuch as the cheque in question was issued by the petitioner company at Ludhiana on a bank situated in Ludhiana, which cheque was presented by the respondent company through its bankers at Ludhiana and the same was dishonoured at Ludhiana. It has been pointed out that the invoice of the goods was prepared at Ludhiana and the goods were supplied from Ludhiana;
and(2) that the payment of the cheque in question was got stopped by the petitioners since according to the foreign buyers - the goods supplied by the respondent company were defective in nature, and the payment of the cheque was got stopped by the petitioners after giving due intimation to the respondent company. It has also been alleged that there were sufficient funds in the account of the petitioner company since they had cash credit account with the bank.
(5) IN reply, the case of the respondent company is that the order for the supply of the goods was placed by the petitioners at the Head Office of the respondent company located at Chandigarh and as such a part of the cause of action arose at Chandigarh. As regard the second plea of the petitioners, it has been stated that according to the enquiry made by the respondent company there were not sufficient funds in the bank account of the petitioners on 2-2-1995 when the cheque in question was dishonoured.
(6) ADMITTEDLY, after the issuance of the process by the Judicial Magistrate summoning the petitioners to face trial in the aforesaid complaint, the petitioners never approached the said Judicial Magistrate with the aforesaid pleas to quash complaint against them or to discharge them in the said complaint. In K. M. Mathew v. State of Kerala, 1992 Cri LJ 3779 : (AIR 1992 SC 2206) their Lordships of the Supreme Court were pleased to lay down the following law (para 8) :-
"it is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process, The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused. "
Once this remedy is open to the petitioners this Court is reluctant to invoke its inherent powers under S. 482 of the Code of Criminal Procedure which are to be exercised with circumspection in rarest of rare cases. The present case does not fall within the category of any such case.
(7) SECONDLY, both the pleas now being sought to be raised by the petitioners are either questions of facts or mixed questions of law and facts. Such pleas cannot be decided merely on the basis of the averments made in the present petition and the affidavit sworn in respect thereof. It is now well settled by a number of decisions of the Apex Court that for the purpose of exercising its powers under S. 482 of the Code of Criminal Procedure or its extraordinary jurisdiction under Arts. 226/227 of the Constitution of India to quash an F. I. R. or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of' the allegations. These powers cannot be exercised to stifle a legitimate prosecution.
(8) IN State of Bihar v. P. P. Sharma, AIR 1991 SC 1260 (at p. 1285) : (1991 Cri LJ 1438 at pp. 1462-63) their Lordships observed that the commission of offence cannot be decided on affidavit evidence, nor the High Court can take short course in annihilating the still born prosecution by going into the merits on the plea of proof of prima facie case and advert to those facts and give findings on merits. It was further clarified that grossest error of law would be committed by the High Court in making a pre-trial of a criminal case in exercising its extraordinary jurisdiction under Art. 226. Similar views have been reiterated by their Lordships in State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 : (1992 Cri LJ 527).
(9) TURNING to the case in hand, it is evident that both the pleas sought to be raised by way of the present pe
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tition are not pure questions of law, but are either questions of facts or mixed questions of law and facts. Both these pleas have been controverted by the respondent company in its reply. Therefore, these questions can only be decided after taking evidence of the parties by the trial court and not on affidavits by this court. I do not find any infirmity or illegality either in the complaint or the accompanying documents or the summoning order to exercise jurisdiction of this court under S. 482 of the Code of Criminal Procedure. (10) FOR the reasons mentioned above, I do not find any merit in this petition and the same is hereby dismissed. The stay of proceedings granted by order dated 30-5-1995 stands vacated. The parties through their counsel are directed to appear before the trial court on 26-2-1996. Petition dismissed.