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Jammu & Kashmir High Court - Srinagar Bench

Nazir Ahmad Baba vs Nazir Ahmad Dar on 23 February, 2018

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

                   HIGH COURT OF JAMMU AND KASHMIR
                              AT SRINAGAR

561-A No. 84/2017
                                                                     Date of Order: 23.02.2018
Nazir Ahmad Baba                              V/s          Nazir Ahmad Dar
Coram:
                 Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:

For petitioner(s)/Appellant(s): Mr. A. Haqani, Advocate.
For respondent(s): Mr. Kaisar Ahmad, Advocate.

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1. Issuance of process by the Chief Judicial Magistrate, Pulwama vide his order dated 31.01.2015 passed in a complaint titled Nasir Ahmad Dar Vs. Nasir Ahmad Baba is subject matter of challenge in these proceedings filed under Section 561-A of the Code of Criminal Procedure.

2. Brief facts of the case are:-

A complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called "the Act") was instituted by the respondent against the petitioner before the Chief Judicial Magistrate, Pulwama (hereinafter referred to as "the trial Court") on 31.01.2015. In the complaint, the respondent alleged the commission of offence by the petitioner under Section 138 of the Act with respect to two cheques, the detailed whereof is as under:-

`                  S. No.    Cheque No.     Dated       Amount          Bank at which drawn
                   1.         720550      01.10.2014    2,00,000/-    State Bank of India Rajpora.
                   2.         250923      07.11.2014    3,00,000/-    State Bank of India Rajpora




561-A No. 84/2017                                                                       Page 1 of 5

However, with the complaint, the two cheques appended indicated that the petitioner had issued two cheques to the respondent bearing Nos. 250923 issued on 07.11.2014 and 720526 issued on 01/10/2014. It is these cheques which were presented by the respondent to the State Bank of India, Branch Rajpora on 26.11.2014 for encashment. Both the cheques could not be encashed due to "Insufficient funds" and were, therefore, returned to the respondent. He served upon the petitioner a notice calling upon the petitioner to make the payment of bounced cheques within 15 days of the receipt of the notice dated 20.12.2014. As is apparent from bare perusal of the notice served by the respondent through his counsel, the number of cheque issued on 07.11.2014 was indicated as 720550 instead of the actual number i.e 720526.

The respondent, thus, filed the complaint appending therewith two cheques in original along with memos of the State Bank of India, Branch Rajpora as also the statutory notice served. Preliminary statement was recorded by the learned trial Court who vide order dated 31.01.2015 impugned in this petition took cognizance of the matter and issued process to the petitioner to answer the charge for offence under Section 138 of the Act.

3. It appears that the petitioner instead of appearing before the trial Court and taking appropriate defence available to him has challenged the order of issuance of process in this petition invoking the inherent jurisdiction of this Court vested by virtue of 561-A 84/2017 Cr. PC.

4. Heard learned counsel for the parties and perused the record.

5. The order impugned has been assailed by the petitioner primarily on the ground that the complaint insofar as it pertains to cheque No. 720550 dated 01.10.2014 is concerned, the same is not maintainable for the reason that cheque bearing aforesaid number was never issued by the petitioner nor the same has been appended by the respondent with his complaint. It is further urged that even in the notice served upon him, the respondent has mentioned 561-A No. 84/2017 Page 2 of 5 the cheque number of the second cheque issued on 01.10.2014 as 720550. He, therefore, submits that the complaint may proceed with respect to cheque number 250923 dated 07.11.2014, but cannot proceed with respect to cheque number 720550 dated 01.10.2014. He, therefore, submits that the sine qua non for filing a complaint under Section 138 of the Act is the issuance of a valid notice affording the person issuing cheque an opportunity to pay the amount and come out of rigors of prosecution under Section 138 of the Act. He, therefore, submits that since he was not given any notice with regard to cheque No. 720526 dated 01.10.2014, as such, there was no cause of action having accrued to the respondent to file the complaint.

6. Per contra, the learned counsel for the respondent submits that the clerical error in mentioning the cheque number, though giving the date and amount correctly, cannot absolve the petitioner of his liability to be prosecuted under Section 138 of the Act. It is urged on behalf of the respondent that the petitioner was aware that he had issued a cheque on 01.10.2014 for an amount of Rs. 2 lacs from his account which did not contain sufficient funds to meet the requirement. He was further aware that aforesaid cheque has not been encashed but did not make the payment despite having received a notice.

7. Considered the submissions made by the learned counsel appearing for the parties.

8. True it is, in the complaint the number of the cheque allegedly issued by the petitioner on 01.10.2014 has been indicated as 720550, whereas, the cheque appended with the complaint issued on 01.10.2014 bears cheque number 720526. It is equally correct that even while issuing the notice, the number of the cheque issued on 01.10.2014 was indicated as 720550. The contention of the learned counsel for the petitioner that there was no valid notice with respect to cheque number 720526 dated 01.10.2014 and therefore, there was no cause of action to maintain the complaint appears to be attractive at the first blush but on careful scrutiny, the same is not found to be tenable in law.

Complaint which was presented before the trial Court is not only a statement of fact given by the respondent but also consists of annexures appended therewith. From perusal of the annexures appended with the complaint, it would transpire that petitioner had issued two cheques, one on 07.11.2014 and other on 01.10.2014. As conceded by the learned counsel for the petitioner, there is no discrepancy with regard to cheque issued on 07.10.2014 and, therefore, the complaint can proceed with respect to the aforesaid cheque. However, regarding the cheque issued by the petitioner on 01.10.2014, undoubtedly, in the complaint, the number indicated is 720550, whereas, the cheque appended bears number 720526. Apart from this discrepancy, there is no other variation. The memo of the bank also refers to number of cheque issued on 01.10.2014 as 720526. It is, thus, evident that the first clerical error has been committed while drafting the notice which was sent through learned counsel to the petitioner on 20.12.2014. The same mistake appears to have travelled to the body of the complaint, but this Court cannot shut its eyes to the fact that the cheques appended with the complaint are allegedly issued by the petitioner which were duly presented by the respondent in his account in the Punjab National Bank, Branch Rajpora. Both have been returned by the bank with the remarks "Insufficient funds". Taking the holistic view of the matter, the defect pointed out by the petitioner is only technical and cannot be allowed to thwart the Course of justice. Besides, vide order impugned, the petitioner has only been put on notice to appear and he would have ample opportunity to take all these pleas at the appropriate stage in the trial.

9. Suffice it to say that on the basis of discrepancy pointed out by the petitioner, the complaint of the petitioner cannot be thrown out at this stage. The petitioner has fairly conceded that complaint with regard to second cheque issued on 07.11.2014 is maintainable and could proceed.

10. That being the position, no prejudice would be caused, if the petitioner appears in the complaint and contests the same viz-a-viz both the cheques aforementioned.

11. For the reasons aforesaid and to do complete justice to the parties, I decline to exercise the inherent jurisdiction vested by virtue of 561-A Cr.PC to quash the complaint or the order impugned.

12. Accordingly, this petition is found to be without any merit and dismissed. Parties to appear before the learned trial Court on 19.03.2018.

(Sanjeev Kumar) Judge Srinagar 23.02.2018.

"Tarun"