Punjab-Haryana High Court
Lilly Hire Purchase Pvt. Ltd. vs Darshan Lal on 10 January, 1997
Equivalent citations: [1997]89COMPCAS663(P&H)
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. This petition has been filed under Section 401 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), against the order dated August 10, 1994, passed by the Additional Sessions Judge, Jalandhar, whereby the order dated July 28, 1992, passed by the Judicial Magistrate, Jalandhar, summoning the respondent to face trial for an offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act") in a complaint case, has been reversed and the complaint dismissed.
2. The necessary facts for the disposal of this petition are that the petitioner-company advanced a loan of Rs. 12,000 to the respondent for the purchase of a Bajaj Chetak scooter. To repay the said loan, the respondent is stated to have issued a cheque dated October 29, 1991, for the said amount, which, on presentation to the bank, was dishonoured with the remarks : (i) refer to drawer, and (ii) signatures do not tally. After serving the legal notice, a complaint under Section 138 of the Act was filed by the petitioner against the respondent in the court of the Judicial Magistrate, Jalandhar. In support of the said complaint, the petitioner-company examined its manager, Shri Inderjit Singh. After being satisfied that a prima facie case for the commission of an offence under Section 138 of the Act was made out, the Judicial Magistrate issued process summoning the respondent to face trial.
3. Feeling aggrieved, the respondent challenged the said order by filing a revision petition before the Additional Sessions Judge, Jalandhar. By the impugned order, the Additional Sessions Judge has held that there was no sufficient legal admissible evidence on the record to summon the respondent. The legal objection regarding the maintainability of the revision raised by the petitioner was overruled. With these findings, the complaint filed by the petitioner has been dismissed. Hence this petition.
4. Miss Aparna Mahajan, advocate, learned counsel for the petitioner, has argued that the order summoning the accused person in a complaint case is an interlocutory order and no revision lies against such an order . and the Addl. Sessions Judge fell in error in interfering with the order passed by the Magistrate in exercise of his revisional jurisdiction. In support of this plea, reliance has been placed on two decisions of this court rendered in Kamaludin alias Kamal v. Mangal Das [1994] 2 Recent C. R. 82 and Rajesh Kumar v. Mahendra Jain [1994] 2 Recent C. R. 135. On the merits, the learned counsel has argued that it was for the trial Magistrate to believe or disbelieve the evidence produced by the complainant in support of the complaint and once the judicial discretion was exercised by the Magistrate by issuing a process under Section 204 of the Code, the Additional Sessions Judge had no jurisdiction to interfere therewith by going into the detailed merits of the case.
5. On the other hand Shri B. R. Mahajan, advocate, while appearing on behalf of the respondent, has argued that a revision is maintainable against a summoning order passed under Section 204 of the Code by a Magistrate and a Sessions Judge has the necessary jurisdiction to interfere with such an order if the same is not in consonance with law. Reliance has been placed upon a recent judgment of this court rendered in Shyam and Co. v. Indian Overseas Bank [1996] 2 AIJ 279. It has been further argued by learned counsel that the cheque in question was dishonoured inter alia on the ground that the signatures did not tally with those of the drawer and as such the case did not fall within the ambit of Section 138 of the Act and the Additional Sessions Judge was justified in reversing the order of the Judicial Magistrate and dismissing the complaint.
6. I have considered the respective arguments carefully and have also perused the precedents cited at the Bar.
7. So far as the legal plea regarding the maintainability of a revision against a summoning order is concerned, the question stands concluded by the two judgments of the apex court rendered in Mohanlal Maganlal Thakkar v. State of Gujarat, AIR 1968 SC 733 and Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47. While placing reliance upon these two decisions and discussing other case law including the contrary view expressed by this court, a single Bench of this court in the case of Shyam and Company v. Indian Overseas Bank [1996] 2 AIJ 279 has specifically held that an order summoning a person as an accused is not an interlocutory order and a revision against such an order is maintainable. In view of the law enunciated by the apex court and explained by a single Bench of this court in the case of Shyam and Company v. Indian Overseas Bank [1996] 2 AIJ 279, I do not find any merit in the legal plea raised by learned counsel for the petitioner and the same is hereby overruled.
8. Coming to the next question, it may be stated that the scope of the enquiry in a complaint case is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint on the materials placed by the complainant before the court. Once the Magistrate is satisfied on the basis of the evidence produced by the complainant that a pnma facie case is made out on the basis of the allegations contained in the complaint coupled with the evidence produced by him, the Magistrate is competent to issue process under Section 204 of the Code and the revisional court will not substitute its own discretion for that of the Magistrate. When a man files a complaint and supports it by his oath, rendering himself liable to prosecution and imprisonment if it is false, he is entitled to be believed unless there is some apparent reason for disbelieving him ; and he is entitled to have the persons, against whom he complains, brought before the court and tried. The only condition requisite for the issue of process is that the complainant's deposition must show some sufficient grounds for proceeding. If the Magistrate conies to the conclusion that the facts deposed by the complainant disclosed an offence and in his opinion there is no ground for distrusting the complainant, the Magistrate would be justified in issuing the process.
9. In th'e present case, the Judicial Magistrate while passing the summoning order, has observed in paras 2 and 3 as under :
"2. To prove his case, Inderjit Singh, manager of the complainant stepped into the witness-box and re-counted the allegation of the complaint. He proved on record, resolution exhibit P-2, certificate of incorporation, exhibit P-1, cheque-exhibit P-3, bank memo exhibit P-4, copy of legal notice--exhibit P-5, postal receipt-exhibit P-6 and A/D receipt exhibit P-7.
3. From the evidence led by the complainant, prima facie commission of an offence under Section 138 of the Negotiable Instruments Act, appears to have bee.n made out. Accordingly, the accused is ordered to be summoned under Section 138 of the Negotiable Instruments Act for September 29, 1992, on complainant's filing copy of complaint/PF/List of witnesses within three days."
10. From a reading of the above observations, it is evident that the Judicial Magistrate was satisfied with the statement of Shri Inderjit Singh, manager of the petitioner-company, along with the documents produced on the record, on the basis of which he came to the conclusion that a prima facie case to summon the respondent for an offence under Section 138 of the Act was made out.
11. Learned counsel for the respondent has argued that the cheque in question was dishonoured, inter alia, for the reason that the signatures of the drawer did not tally and as such no offence under Section 138 of the Act can be said to have been made out. This argument is miscon-
ceived. The cheque was dishonoured also with the remarks "refer to drawer" which expression means that there were not sufficient funds with the bank in the account of the respondent. This fulfils the essential condition to make out a case under Section 138 of the Act. The question as to whether the signatures of the drawer did or did not tally still remains a question of fact to be decided at the trial. The Additional Sessions Judge has over-stepped his limit of revisional jurisdiction in appreciating the preliminary evidence produced by the complainant as if he was giving a final verdict of acquittal at this initial stage.
12. As a result of the above discussion, this petition is allowed. The impugned order dated September 10, 1994, passed by the Additional Sessions Judge is set aside, and the order dated July 28, 1992, passed by the Judicial Magistrate, summoning the respondent to face trial for an offence under Section 138 of the Act is restored. The parties are directed to appear before the trial court on February 4, 1997.