Punjab-Haryana High Court
Ram Singh vs Sanjay Kumar Mittal on 25 September, 2013
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRM No.M-9733 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM No.M-9733 of 2011
Date of decision: 25.09.2013
Ram Singh
...Petitioner
Versus
Sanjay Kumar Mittal
...Respondent
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr. Vivek Suri, Advocate for the petitioner.
Mr. P.S. Dhaliwal, Advocate for the respondent.
****
Jitendra Chauhan, J. (Oral)
The present petition under Section 482 of the Code of Criminal Procedure has been filed for quashing the complaint No. 460 dated 12.03.2010, under Section 138 of the Negotiable Instrument Act (for short ' the Act') read with Section 420 of the Indian Penal Code and the summoning order dated 12.03.2010 passed by the Court of Judicial Magistrate 1st Class, Patiala.
The learned counsel for the petitioner contends that the petitioner did not receive any legal notice sent through counsel. Even a copy of the legal notice brought on the record by respondent/complainant does not bear the signatures of the learned counsel through whose office, the notice was allegedly served upon the petitioner. It is further asserted that the complete detail of the loan advanced to the petitioner is also not Sumit Kumar 2013.11.06 16:51 I attest to the accuracy and integrity of this document CRM No.M-9733 of 2011 -2- reflected in the complaint. The notice was sent on the incorrect address. The learned counsel further submits that the original complaint filed in Court, too, is not signed by the complainant and it is only signed by the counsel. Therefore, it is to be quashed being not filed by a duly authorized person.
Lastly, it is asserted that the petitioner had never issued cheque to the complainant. Therefore, the learned counsel prays that the complaint deserves to be quashed.
On the other hand, the learned counsel for the respondent submits that the cheque was duly issued by the petitioner to discharge his liability. The legal notice was sent through registered post, receipt of which is Ex.C4. Even, if the details of the loan did not reflect in the impugned complaint but the cheque was duly signed by the petitioner in discharge of his liability.
This Court has carefully considered the rival contention of the parties and have carefully gone through the lower court record. The relevant provisions applicable to the case are reproduced hereunder:-
Section 2(d) of the Code of Criminal Procedure defines the complaint as under:-
"Section 2(d) 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police Sumit Kumar 2013.11.06 16:51 I attest to the accuracy and integrity of this document CRM No.M-9733 of 2011 -3- 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."
Section 190 of the Code reads as under:-
190. Cognizance of offences by Magistrates.
(1)Subject to the provisions of this Chapter, any 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.
2 The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.
Section 94 of the Negotiable Instruments Act, 1881 which is reads as under:-
"94. Mode in which notice may be given.Sumit Kumar 2013.11.06 16:51 I attest to the accuracy and integrity of this document CRM No.M-9733 of 2011 -4-
Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment, that the instrument has been dishonoured, and in what way, and that he Will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid."
Section 142 of the Act reads as under:-
"142. Cognizance of offences.
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) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138;Sumit Kumar 2013.11.06 16:51 I attest to the accuracy and integrity of this document CRM No.M-9733 of 2011 -5-
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."
The learned counsel for the petitioner has not been able to respond to a query of the Court that as to who was the intended person in whose favour the alleged cheque was issued. The signatures on the cheque are not disputed. Admittedly, the original of notice Ex.C3/1 was sent through registered post vide postal receipt Ex.C3 and it is deemed to be served. The original notice sent through envelope is in possession of the petitioner. Neither notice nor envelope is being produced in the Court. Therefore, the assertion of learned counsel for the petitioner that the original legal notice was not signed is to be ignored as the petitioner has refused to acknowledge the receipt of the notice sent to him.
Coming to the point of unsigned complaint, this Court has perused the judicial file. It is correct that the original complaint is not signed by the complainant himself, but it is signed by his counsel. On 12.03.2010, the complaint was presented before the Judicial Magistrate 1st Class, Patiala; it was registered and the statement of the complainant was recorded as CW1. Even if the complaint was not signed by the complainant, the complainant tendered his duly sworn affidavit Ex.CW1/A and on the basis of preliminary evidence, the Court took cognizance of the complaint, and summoned the present petitioner to face trial under Section 138 of the Negotiable Instrument Act. The Negotiable Sumit Kumar 2013.11.06 16:51 I attest to the accuracy and integrity of this document CRM No.M-9733 of 2011 -6- Instrument Act is not a complete code. For procedure, the Courts have to proceed according to the Code of Criminal Procedure, 1973 (herein referred to as 'the Code').
So, a complaint can be made orally to a Magistrate and need not be in writing. Affidavit CW1/A tendered in evidence can be treated as a complaint by which the complainant rectified the complaint stating in the last para that the contents of the complaint be taken and read as part of the affidavit (Ex.CW1/A) as the facts mentioned in the complaint were not repeated there to avoid repetition. So, the unsigned complaint looses its significance, in view of affidavit Ex.CW1/A, power of attorney signed by the complainant in favour of his counsel attached with the complaint and on presentation of the complaint and the summoning order passed by Judicial Magistrate 1st Class, Patiala. It is again repeated here that the counsel for the petitioner did not deny the issuance of cheque, its dishonour and signatures thereon. Thus, the Section 142 of the Act provides that no cognizance shall be taken for any offence punishable under Section 138 except upon a complaint in writing made by the payee or the holder in due course as the case may be. So far taking cognizance for offence under Section 138 of the Act there must be complaint in writing. In the instant case, it is not the case that the cognizance has been taken by the Court without any written complaint. The only omission in the complaint is that the same is not signed by the complainant, which is not fatal, in view of affidavit of the complainant and statement made in Court in preliminary evidence.
Sumit Kumar 2013.11.06 16:51 I attest to the accuracy and integrity of this document CRM No.M-9733 of 2011 -7-
This Court is of the opinion that for taking cognizance for an offence under Section 138 of the Negotiable Instruments Act, the complaint may not be in writing or signed by the complainant. The complaint will have the same meaning as defined under Section 2(d) of the Code of Criminal Procedure. By filing of the complaint the cognizance is not taken. Cognizance is taken in a case filed on a complaint other than a police report in a warrant trial when the Magistrate applies his mind and issue the process to the accused/respondent to give answer to the allegations. The law has made a clear provision where it wants that a particular act should be done not in writing but by the party before taking the cognizance. In this case the cognizance has been rightly taken and there is no illegality or infirmity in the summoning order.
The impugned summoning order was passed on 12.03.2010, and in pursuance of the summoning order, the petitioner appeared in Court on 21.07.2010. A notice under Section 138 of the Act was served upon the petitioner on 30.08.2010, to which he pleaded not guilty and claimed trial. The present petitioner did not file any revision against this order/notice. This order has attained finality. The petitioner did not take the objection of un-signing of complaint at the earliest opportunity. The filing of this petition under Section 482 of the Code at this belated stage in this Court on 19.04.2011 is nothing but a futile attempt to delay the proceedings. From the above discussion, it is held that the complaint was properly presented and there is no irregularity in filing the complaint or in the impugned summoning order dated 12.03.2010.
Sumit Kumar 2013.11.06 16:51 I attest to the accuracy and integrity of this document CRM No.M-9733 of 2011 -8-
The next objection of the learned counsel is that the notice was sent on incorrect address. This Court has scrutinized the judicial record, it reveals that the original notice, copy which is Ex.C3 was sent through post vide postal receipt Ex.C4 to Ram Singh, resident of H.No.14-A, Sarabha Nagar, opposite Dhindsa Filling Station, Bhadson Road, Patiala. On the same address, summons of the complaint case were served upon him through his wife Mrs. Daljit Kaur on 04.05.2010, for the next date in the complaint case is 14.05.2010. Mere saying that the present petitioners never received the said notice either at his official address or at his residential address, is not enough in view of Ex.C3 postal receipt unless rebutted. So, this argument is repelled.
The argument that the details of the business transactions are not pleaded in the complaint, also does not cut much ice, as the Code of Civil Procedure is not applicable and the strict principles of pleadings is not applicable in the complaint cases.
The case law Suman Sethi Vs. Ajay Churiwal 2000(1) RCR 780; Kanhaiya Vs. State of U.P. 2010(4) civil court cases 98, Ramesh Chandra Vs. Ramesh Chandra 2012(3) RCR Crl 570; and Santosh Kumar Vs. State of Jharkhand 2012(3) RCR (Crl) 572, cited by the learned counsel for the petitioner is distinguishable on the facts of the case.
No other point has been raised.
Keeping in view the above discussion, this petition fails and is dismissed.
However, anything said here-in-above shall have no bearing Sumit Kumar 2013.11.06 16:51 I attest to the accuracy and integrity of this document CRM No.M-9733 of 2011 -9- on the merits of the case.
While parting with the judgment, it is observed that proceedings before the learned trial Court were stayed on 23.01.2012. Proceedings remained stayed till today. So, the trial was delayed for more than 20 months. The lower Court record is returned to the concerned Court with the observation that the complaint shall not be adjourned unnecessarily and shall be decided as expeditiously as possible.
Parties through their counsel have been directed to appear before the trial Court on 20.11.2013 at 10 AM.
25.09.2013 (JITENDRA CHAUHAN)
sumit.k JUDGE
Note:- Whether to be referred to reporter - Yes / No Sumit Kumar 2013.11.06 16:51 I attest to the accuracy and integrity of this document