2002(4) ALL MR (JOURNAL) 8
PUNJAB AND HARYANA HIGH COURT
R.C. KATHURIA, J.
D. K. Chandel Vs. M/S Wockhardt Limited.
Criminal Misc. No. 19725-M of 2000
20th May, 2002
Negotiable Instruments Act (1881) Ss.138, 142 - Dishonour of cheque - Cheque in favour of company - Complaint can be filed by Manager of Company - Even if it is found that manager had no authority to file the complaint, company can be allowed to be represented by competent person in this behalf - Court cannot decline to take cognizance on ground that Manager was not authorised to file complaint.
It is well settled that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance and no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. The only criteria laid down in Section 142 of the Act is that complaint must be filed by the payee or the holder of cheque in due course. In the present case the complaint has been filed by Sanjeev Dutta, Manager Personnel on behalf of the company and if it is found that he has no authority to file the complaint then the company can be allowed to be represented by the competent person in this behalf but at this stage complaint cannot be rejected on this ground. [Para 7]
JUDGMENT :- D.K. Chandel, who is proprietor of M/s Dinesh Enterprises, Main Bazar, Cheog, arrayed as accused No. I in the complaint filed by the respondent under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as 'the Act')has filed the present petition seeking quashing of the complaint dated 24.7.1999 and the summoning order dated 7.10.1999 passed by the Judicial Magistrate 1st Class, Bathinda.
2. The circumstances which led to the institution of present complaint need to be noticed in brief. The complainant-company deals in manufacturing of pesticides, weedicides etc. for boosting agricultural and horticultural produce etc. The petitioner-accused had been purchasing pesticides and weedicides on credit from the complainant company from time to time and making the payment to the company accordingly. On 30.4.1999 in order to discharge his liability, the petitioner issued an account payee cheque No. 333565 dated 30.4.1999 for Rs. 4,17,148/- which, was drawn on State Bank of India, Cheog (Himachal Pradesh) in respect of his Account No. AGR IV 1600. When the complainant presented the cheque for encashment through State Bank of India, Bathinda Branch, the same was returned dishonoured with the remarks "Insufficient Funds" and "Refer to drawer" as per returning memo dated 20.5.1999. On receipt of the aforesaid memo, the complainant issued a registered notice through his counsel on 9.6.1999. The payment was demanded which was not made by the petitioner-accused and for that reason the complainant filed the complaint in the Court.
3. In preliminary evidence, the complainant-Sachin Kalani examined himself as CW-1 and Ram Sarup as CW-2 in support of the allegations made in the complaint. Documents consisting of the authority letter Ex. CW-1, the original cheque Ex. CW-2, returning memo dated 20.5.1999 Ex. CW- 3, endorsement of State Bank of India dated 20.5.1999 Ex. CW-4, copy of legal notice Ex. CW-5 postal receipt Ex. CW-6, receipts of purchase and sale of pesticides Exs. CW-7 and CW'8 were produced on record. In view of the above stated evidence, the petitioner-accused was summoned to face trial under Section 138 of the Act as per order dated 7.10.1999 of the Judicial Magistrate 1st Class, Bathinda. Hence, the present petition.
4. In pursuance to the notice given to the respondent, affidavit of Sanjeev Dutta, Manager Personnal authorised signatory of the complainant has been filed wherein the facts stated in the petition have been reiterated and the stand taken on behalf of the petitioner-accused has been refuted. None has put in appearance at the time of hearing.
5. I have gone through the grounds taken by the petitioner in the petition on the basis of which quashing of complaint dated 24.7.1999 and summoning order dated 7.10.1999 has been sought. Primarily two pleas have been taken in the petition. Firstly, that service of the notice calling upon the petitioner to make the payment within fifteen days of the receipt of the notice in terms of the requirement of Section 138(c) of the Act has not been proved on record and for that reason the trial Magistrate was not competent to take cognizance of the complaint. Secondly, the complaint has not been filed by the competent person and for that reason it cannot be said that it was filed by the payee or the holder of the cheque in due course and the complaint as well as summoning order are bad and deserve to be quashed.
6. Bare examination of the provisions of Section 138 including the proviso (c) of the Act leaves no manner of doubt that a statutory duty has been cast upon the complainant to call upon the drawer of the cheque to make the payment to the payee within 15 days of the receipt of the notice. It is the case of the complainant in the complaint that after memo dated 20.5.1999 was received by the complainant, legal notice dated 9.6.1999 was sent by the respondent complainant through his counsel to the petitioner. The definite stand taken on behalf of the respondent in the written affidavit filed is that respondent had sought confirmation with regard to the service of notice sent to the petitioner as per letter dated 7.7.1999 addressed to the Post Master of Delhi High Court Post Office by Samir Tandon, Advocate, copy of which is Annexure- R.2, to which thereafter reply was received from the Senior Superintendent of Post Office, New Delhi vide their letter dated 8.9.1999 certifying that registered A.D. addressed to the petitioner on the address of M/s. Dinesh Enterprises, Main Bazar, Post office, Cheog, Tehsil Theog, District Shimla- 171209 had been delivered on 14.6.1999 and the copy of the said letter has been annexed with the reply as Annexure-R.J. Further affidavit of Samir Tandon, Advocate has been placed on record in this regard which is Annexure- R.4. The stand taken on behalf of the petitioner stands rebutted from the documents placed on record and as such on the basis of averments made, this petition cannot be accepted. Under the circumstances of the case, the stand taken on behalf of the petitioner that the Court was debarred from taking cognizance of the offence under Section 142 of the Act has not been substantiated on record.
7. Coming to the other plea raised, it is well settled by now that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance and no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. The only criteria laid down in Section 142 of the Act is that complaint must be filed by the payee or the holder of cheque in due course. In the present case the complaint has been filed by Sanjeev Dutta, Manager Personnel on behalf of the company and if it is found that he has no authority to file the complaint then the company can be allowed to be represented by the competent person in this behalf but at this stage complaint cannot be rejected on this ground.