Punjab-Haryana High Court
U.C. Saxena, Managing Director, Mehra ... vs Shri Madan Mohan on 3 December, 1992
Equivalent citations: (1993)104PLR161
ORDER S.K. Jain, J.
1. U. C. Saxena, Managing Director, Mehra Machines and Equipments Private Limited, Noida, through this petition under Section 482 of the Code of Criminal Procedure seeks quashing of the criminal complaint bearing No. 39/2A dated 27th February, 1990, under Section 138 of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 and under Sections 406/420 of the Indian Penal Code (Annexure P-l) and summoning order (AnnexureP-2). The respondent on being served has filed a short affidavit.
2. Learned counsel for the parties have been heard.
3. Learned counsel for the petitioner has admitted that the relevant three cheques were issued to M/S Faridabad Sales Corporation Faridabad which was a sole proprietorship concern of Shri Dalip Jain, that under Section 142 (a) only the payee or, as the case may be, the holder in due course of the cheque could institute a complaint. In support of his argument, he had relied upon Kumaresan v. Ameerappa, 1991 (3) Recent Crl. R. 172
4. In reply, learned counsel for the respondent has submitted that the complainant Madan Mohan in the capacity of the agent of Dalip Jain, payee, could file the present complaint in view of the provisions of Section 188 of the Indian Contract Act, 1872 and Section 190 I. P. C.
5. Learned counsel for the parties have been heard.
6. M/S Faridabad Sales Corporation, Faridabad is admittedly is a sole proprietorship concern of Shri Dalip Jain, Mr. Madan Mohan complainant, petitioner herein, is the employee of said Dalip Jain. No doubt, under Section 190 of the Code of Criminal Procedure, it can be said that upon a complaint filed by a person setting out facts therein which constitutes the offence before a Magistrate specified in Section 190, the Magistrate would be competent to take cognizance of the offence irrespective of the qualification or eligibility of the complainant to file the complaint, but where a provision to the contrary is made in any statute, which may indicate the qualification or eligibility of a complainant to file the complaint, the Magistrate before taking cognizance is entitled and has power to enquire whether the complaint satisfies the eligibility criteria In Section 142(a) of the Negotiable Instruments Act, 1881, qualification or eligibility of a complainant to file a complaint under the Act has been specified as under :-
"142. Cognizance of offence-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 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) xx xx xx xx (c) xx xx xx xx
7. As mentioned herein before, Madan Mohan complainant was neither the payee nor the holder in due course of the cheque and, therefore, he was not competent to institute the complaint. The learned trial Magistrate has gravely erred in having failed to consider the above aspect of the case. Therefore, I have no hesitation to hold that the court below could not have taken cognizance of the complainant as far as the offence under Section 138 of the Negotiable Instrument Act is concerned.
8. Now on to the offence under Section 420 of the Indian Penal Code. Section 190 of the Code of Criminal Procedure provides that a Magistrate of the First Class, and any Magistrate of the second Class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
9. Therefore, the cognizance of an offence under Section 420 of the Indian Penal Code could be taken by the Magistrate under the provisions of Section 190(1)(c) of the Code
10. In view of the above discussion, the complaint and the summoning order in respect of the offence under Section 138 of the Negotiable Instruments Act are quashed. The learned Magistrate will now hear the parties on the question of framing of the charge under Section 420 of the Indian Penal Code and proceed according to law.
11. Parties through their counsel are directed to appear before the court below on January 6, 1993
12. Petition partly allowed.