Gujarat High Court
Dipendra G. Choksi And Anr. vs Kailashchandra C. Dhoot And Anr. on 17 December, 1993
Equivalent citations: (1995)1GLR424
JUDGMENT B.C. Patel, J.
1. Petitioners-original accused have preferred this application under Section 482 of the Criminal Procedure Code for quashing the process issued by Metropolitan Magistrate, 9th Court, in Criminal Cases Nos. 2027 of 1990, 1954 of 1990, 1955 of 1990 and 2028 of 1990.
2. On different dates goods were obtained for which payments were made by cheques and as the cheques were dishonoured the complaints referred to hereinabove came to be filed against the petitioners-original accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. So far as parties to the present proceedings are concerned, they are the same parties in all the petitions and the question involved is also the common question, and hence all the petitions are disposed of by this common judgment.
3. Few relevant facts are as under:
Opponent No. 1 is the Manager of Shree Trading Corporation which deals in the business of caustic soda at Ahmedabad. Petitioner No. 1 is the Managing Director while petitioner No. 2 is the Director of M/s. Sanchem Enterprise, a registered company under the Companies Act.
4. So far as Miscellaneous Criminal Application No. 87 of 1991 is concerned, further facts are that the accused approached the complainant in November 1989 and placed an order for supply of caustic soda, and accordingly material was supplied. Petitioners were required to make payment of Rs. 19,832/- towards cost of the material. It is alleged in the complaint that, "the accused has issued a cheque of Vijaya Bank dated 24-6-1990 bearing No. 443466 for Rs. 19,832/-". The said cheque was returned by the banker and inspite of the notice as the payment was not made complaint is filed. So far as Miscellaneous Criminal Application No. 105 of 1991 is concerned, the facts are that the accused approached in November 1989 and placed an order for supply of caustic soda which the complainant supplied. It is alleged in the complaint "that the accused were required to make the payment of Rs. 1,35,004/- towards the cost of the materials. The accused has issued 3 cheque of Vijaya Bank dated 31-3-1990 bearing No. 443552 for Rs. 44,585/-, dated 28-9-1990 bearing No. 443463 for Rs. 46,851/- and dated 27-5-1990 bearing No. 443465 for Rs. 43,568/-. When the said cheques were presented in the Bank and as the same were dishonoured, notice was issued to the petitioners. The petitioners failed to make payment and hence complaint came to be filed.
5. So far as Miscellaneous Criminal Application No. 132 of 1991 is concerned, the facts are that the accused approached the complainant and placed an order for supply of caustic soda which complainant supplied and accused were required to make payment of Rs. 93,943/-. It is alleged in the complaint that "after receiving the materials the accused had issued two cheques of Vijaya Bank, Navrangpura Branch, Ahmedabad, dated 10-6-1990 for Rs. 42,809/- and dated 17-6-1990 for Rs. 51,134/- bearing Nos. 443464 and 443467 respectively". The cheques were presented to the banker for collections but the same were dishonoured and hence a notice was given to the petitioners and inspite of that as payment was not made the complainant was obliged to file a complaint under Section 138 of the Negotiable Instruments Act.
6. So far as Miscellaneous Criminal Application No. 133 of 1991 is concerned, it is alleged in the complaint that the petitioners placed an order for supply of caustic soda which was supplied by the complainant. It is alleged in the complaint that, "after receiving the materials the accused has issued two cheques of Vijaya Bank, Navrangpura Branch, Ahmedabad, dated 30-6-1990 for Rs. 18,494/- and dated 30-6-1990 for Rs. 33,374/- bearing Nos. 443469 and 443468 respectively." It is alleged in the complaint that the cheques were presented for collection and the same were returned by the bankers and hence the complainant was obliged to give a notice to the petitioners and inspite of that they failed to make the payment to the complainant who filed the complaint.
7. Mr. Kothari, learned Advocate appearing for the petitioners contended that the complaint is not filed by a "payee" or a "holder in due course" but the complaint is filed by a Manager and in the complaint there is nothing to indicate that he has any authority to file a complaint on behalf of the payee or a holder in due course. He further submitted that as mentioned in the complaint itself that accused No. 1 is the Managing Director and accused No. 2 is the Director. However, there is nothing to show that accused No. 2 was in-charge of the Company on that day or had any control over the business affairs of the Company. It was further submitted that in the entire complaint there is nothing to show that the accused issued a cheque in favour of Shree Trading Corporation or in favour of the owner or Director or partner of the said Shree Trading Corporation or in the name of the complainant. A specific statement indicating the amount of cheque, its number, date and the bank on which it is drawn is there but complaint is not indicating as to in whose favour the cheque is issued or who is the payee or holder in due course. In absence of requisite detail the Court ought not to have taken cognizance in view of Section 142 of the Negotiable Instruments Act, which reads as under:
142. Cognizance of offences.--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (II of 1974):
(a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) ....
(c) ....
Clause (a) makes it very clear that the Court can take cognizance only if the complaint is filed in writing by the payee or the holder in due course of the cheque. Complaint is totally silent about the payee or holder in due course of the cheque. It was necessary to mention in the complaint that the complainant is a payee or a holder in due course of the cheque as mentioned in Sections 7 or 9 of the Negotiable Instruments Act, 1881. The definition of 'payee' and 'holder in due course' reads as under:
Section 6:
"Payee".--The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the "payee".
"Holder in due course".--"Holder in due course" means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payer or endorse thereof, if (payable to order), before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from who he derived his title.
8. If there is nothing to show that the complainant is a payee or a holder in due course, the Court could not have taken cognizance, and on this short ground alone, petition required to be allowed. Mr. Nanavati, learned Advocate appearing for original-complainant read out the complaint but could not point out from the complaint as to who is the payee or holder in due course of the cheque.
9. In absence of this positive averment in the complaint the Court ought not to nave taken cognizance of the offence and therefore, the process issued against the petitioners requires to be quashed on this limited ground only.
Rule is made absolute in all the matters.