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TMI Blog2020 (9) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, Jammu, (herein after for short trial court) wherein cognizance was taken on 16.03.2016 and consequently summons issued against the accused / petitioner herein. In the said petitions, petitioner questioned the maintainability of complaints as also cognizance order dated 16-03-2016 as also orders dated 01.07.2017 and 14.08.2017 as well passed by the trial court. The aforesaid petitions came to be disposed of by this court separately after hearing appearing counsel for the parties on 31.05.2018, whereby order of cognizance dated 16.03.2016 passed in both the complaints came to be quashed allowing the trial court to pass fresh order in accordance with the law. Significantly this court did neither render any decision qua the other grounds of challenge/ points raised nor granted any relief other than above in the aforesaid petitions. Keeping in view the above position, the facts those emerge from both the above petitions now require to be delineated. CRM(M) No. 483/2019 3. Petitioner in the instant petition has sought following reliefs: - "Petition u/s 561-A CrPC for quashing the judgment and order dated 25.05.2019 passed by the Learned Principal Sessions Judge, Jammu whereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evive the complaint dated 16.03.2016 which was declared invalid already by the Hon'ble High court along with rectification order and subsequent orders as entire proceedings stood quashed. On a invalid complaint the fresh order after issuing notice for calling the accused to be present on date 9.6.2018, 30.06.2018, 21.07.2018, 24.08.2018 and recording the presence of counsel of parties on 06.10.2018 and ultimately for putting up the file for arguments after recording the presence of counsel of complaint and accused, the file was again reverted back to pre- cognizance stage. Cognizance work was started again by recording statement of complainant on 17.12.2018 and thereafter issue of fresh process vide impugned order dated 17.12.2018. It was bad and impressible in law. b. That it is pertinent to mention that the trial court after 5. 11.2018 order did not permit the counsel of accused to address arguments and pushed the accused to go away out of proceedings. The entire process and procedure adopted after receipt of file from the Hon'ble High Court was unwarranted, illegal per se. It caused serious prejudice to rights of petitioner to have a fair, legal and proper trial onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court. The summoning of the accused by order dated 9.6.2018 without taking cognizance on a validly instituted complaint amounted to illegal exercise of jurisdiction. By pushing out the accused from the court proceedings after calling upon the petitioner to address arguments on 5.11.2018 on cognizance and again reversing back to take down the preliminary statement of the complainant, the trial court has ostensibly violated the mandate of law and also the liberties of the petitioner without any justifiable reason. f. The order of summoning the petitioner after receipt of file from the Hon'ble High Court without taking cognizance and issuance of process in accordance withlaw the provisions of section 202 were contravened by the Ld. Magistrate. It was impermissible. The entire proceedings conducted under the impugned orders passed by the trial court after receipt of file from the Hon'ble High Court are liable to be quashed and set aside. The impugned orders are against principles settled by the Hon'ble Supreme Court in the case of Adalat Prasad Vs Rooplal Jindal & Ors reported in 2004, 7 SCC 338. g. That the pending alleged complaint without signature on affidavit in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint is pending. l. That the alleged payee being a company it was mandatory for maintaining the complaint on behalf of the company, a legal entity, to produce the resolution of the directors of the company or other authority to authorize a living person to prosecute the case on behalf of the company. Neither any mention was made in the title and body of the complaint about the authority of the signature of the complaint nor was any document in this behalf produced along with the complaint which made it incompetent on behalf of the alleged payee company. m. That the alleged blank cheqeus lying with the respondent were without any legally enforceable debt or liability at the time cheque was issued as security. There was nothing outstanding or due at the relevant date and there was no agreement or authority given to the petitioner to fill up the blank cheque showing the amount ascertained or ascertainable to discharge any supposed debt or liability. n. That the complainant has misused the trust reposed in him to return the blank cheques as after settlement of all payments the cheques were retained with malafide intention to harass and humiliate the petitioner without any justifiab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed in above referred 561-A petition bearing No. 651/2017 filed by the petitioner before this Court). According to the petitioner the said order of cognizance dated 17-12- 2018 came to be challenged before the learned Sessions Judge, Jammu (herein after for short the revisonal Court) in a revision petition being file No. 19/Criminal Revision, which however, came to be rejected vide order dated 25-05-2019. 8. In this petition as well the petitioner has raised and urged same and similar contentions and grounds as have been raised by him in CRM(M) No. 483/2019 supra, as such it may not be appropriate to reproduce the same. 9. Heard appearing counsel for the parties, perused the record and considered the matter. 10.Perusal of the record reveals that two complaints under section 138 NI Act being File No. 173/complaint and 174/complaint both dated 16.03.2019 had been filed by respondent herein against the petitioner qua bouncing of payee account cheque bearing No. 080420 dated 25.01.2016 for an amount of Rs. 3,70,000/- and payee account cheque bearing No. 080419 dated 27.01.2016 for an amount of Rs. 5,80,000/-, respectively before the trial court, whereupon, the trial court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted on the basis thereof by this court. Accordingly, Hon'ble High Court of J&K directed this court to pass fresh order in accordance with law. In this way, this complaint came up for consideration today. After hearing the learned counsel for the complaint, I have perused the complaint, pre-summoning statement of complainant and gone through the memo of dishonor of cheque and the copy of demand notice it appears that accused for liability/ debt of Rs. 3.70 lacs only towards the complainant had issued one cheque bearing No. 080420 dated 25.01.2016 payable at Union Bank of India, Gandhi Nagar Jammu. The complainant presented the said cheque before the Union Bank of India, Gandhi Nagar, Jammu for encashment purposes but the cheque was returned unpaid with memo dated 06.02.2016 with the remarks of "Funds insufficient" . Thereafter, complainant issued demand notice to the accused for the payment of the cheque amount mentioned by registered post on 17.02.2016, the postal receipt bearing No. RE8559510021N dated 17.02.2016 signifying the issuance of demand notice is also placed on record. Since the notice is stated to have been issued on 17.02.2016 and the person complained agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and grounds urged by the counsel for petitioner and sought dismissal of the instant petitions on the premise that same are aimed at to frustrate and forestall legitimate prosecution of the complaints filed against the petitioner and argued that the filing of the instant petitions in fact is an abuse of process of court. Learned counsel for the respondent while refuting and denying the factual contentions raised in the petition defended the institution of the complaints in as much as commencement of proceedings thereon as also the orders passed by both the trial court as well as revisional court. Learned counsel for respondent further argued that the petitioner is in law precluded from raising the issues in the instant petitions as he had raised the same in earlier 561-A petitions being petition No. 650/2017 and 651/2017 decided by this court vide order dated 31.05.2018 where under order dated 16.03.2016 alone came to be set aside essentially therefore, refusing all other reliefs which had been prayed therein by the petitioner. 19.What emerges from above is that, the petitioner in the instant petitions in essence has thrown challenge to the maintainability of the complaints supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here it has been endorsed in favour of another, the holder in due course) of the cheque. "Section 190 of the Code enumerates the various modes of taking cognizance of offences by the Magistrates. It provides for taking cognizance upon receiving a complaint of facts which constitute such offence. Section 200 of the Code relates to examination of the complainant, relevant portion of which reads as under: "200. Examination of complainant_ A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or (b) ****" 21.In the light of the aforesaid legal provisions coupled with Paras 15 and 16 of the Judgment of the Apex Court reported in 2009 (1) SCC 407 titled as "National Small Industries Corporation Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmoning order dated 17.12.2018 notwithstanding the earlier summoning of the petitioner herein. The aforesaid errors committed by the trial Court by no sense of imagination could said to be fatal to the entire proceedings, in that, even if same or treated nullity or are set aside the further proceedings subsequently conducted by the trial court would not get affected. Therefore, complaining of suffering a prejudice or injustice on this account by the petitioner is insignificant and legally of no consequence. Furthermore the petitioner cannot question the order of cognizance or else proceedings conducted by the trial court after receipt of record back from this court on account of denial of hearing is also legally not sustainable, since hearing of accused at the time of recording of preliminary statement of the complainant, passing of cognizance order as also before issuance of process is not, in law, conceived of. Reference and reliance in this regard is placed on judgement of this court reported in 2019 (2) JKJ (HC) 36 titled as Manzoor Ahmad Burza Vs. Gulzar Enterprises, wherein at para 22 and 23 following is noticed: - 22. "Even otherwise the purpose of providing for a speedier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance." In the light of Apex Court judgment supra, a bear perusal of orders of cognizance and summoning dated 17.12.2018 passed by the trial court would manifestly demonstrate that the trial court has passed the same validly and legally, upon hearing the learned counsel for the complainant and after taking into account the contents of the complaint material attached therewith as also pre-summoning statement of the complainant. The trial court validly appears to have proceeded in the matter in tune with chapters XIV (sections 190-199 CrPC) relating to the conditions requisite for initiation of proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions supra and that this court did not render any decision on the said issues and as such in law, same cannot be re-agitated in the proceedings under section 482 in the instant petitions. The said issues otherwise can conveniently be dealt with by the trial court in the complaints in question. 26. Again risking repetition, next while considering the issues raised by the petitioner in the instant petitions that the fresh order passed in the complaints in question under section 138 is barred by section 142 (1)(b) besides being based on invalid, impermissible, incompetent complaint is also without any substance and legally unsustainable, in that, under clause (b) of section 142 (1), of NI Act, a cognizance upon a complaint is forbidden by any court if not made within one month from the date of cause of action arises. Perusal of the record reveal that the complaints came to be instituted and entertained by the trial court on 16.03.2016 after the complainant spelt out specifically therein the accrual of cause of action in his favour for institution of complaints. In law, in filing of complaint under section 138 of NI Act, the date of filing of complaint is the relevant date for consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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