LAW POINT
Joint complaint by two or more persons against an accused is not maintainable in dishonour of cheques.

JUDGMENT

Sanjeev Kumar, J.—This is a petition by the petitioner filed under Section 561-A of the Jammu & Kashmir Code of Criminal Procedure (now repealed) for seeking quashment of order dated 28th of February, 2018 (impugned order) passed by learned District Mobile Magistrate, Sopore (“the trial court”) in a complaint tilted Haji Bashir Ahmad Dar & another vs. Mohammad Shafi Mir’. The impugned order, which has been passed in a complaint filed by the respondents jointly under Section 138 read with Section 142 of the Negotiable Instruments Act, is assailed on the solitary ground that Section 138 read with Section 142 of the aforesaid Act does not envisage a joint complaint by two complainants and, therefore, the complaint and all subsequent proceedings thereon are vitiated in law.

2. With a view to address this question of seminal importance that has arisen in this petition, it would be necessary to first notice few material facts.

3. The respondents have filed a joint complaint against the petitioner before the trial court on the allegation that the petitioner owed an amount of Rs.2,50,000/- to the respondents as consideration for purchasing the land of the respondents and with a view to discharge the liability, the petitioner issued four cheques to the respondents, three cheques for an amount of Rs.50,000/- each and one cheque for Rs.1,00,000/- on account No.3165156346 maintained by the petitioner with Central Bank of India, Branch office Main Chowk, Sopore. It is claimed that the said cheques when presented by the respondents before the concerned Bank were returned with the endorsement “funds insufficient”. After the cheques were bounced by the concerned Bank, the respondents claim to have requested the petitioner to pay the amount of cheques which had remained un-encashed for want of sufficient funds in the account of the petitioner. The petitioner, however, did not pay any heed to the request of the respondents. The respondents served a common legal notice dated 7th of July, 2014, requesting the petitioner to pay the amount mentioned in the cheques within 15 days of the receipt of notice but the petitioner chose not to liquidate the amount. Having faced with the refusal by the petitioner to pay the cheque amount, the respondents joined hands to file a complaint before the trial court, from where the impugned order has arisen.

4. The impugned order has arisen out of an application moved by the petitioner for dismissal of the complaint on the ground that a joint complaint by the respondents was not maintainable. The application was objected to by the respondents.

5. The trial court considered the rival contentions and dismissed the application of the petitioner without returning any finding as to the maintainability of joint complaint under Section 138 read with Section 142 of the Negotiable Instruments Act. The application was dismissed on the ground that the trial court after having taken cognizance of the complaint was bereft of jurisdiction to review its order. Reliance was placed on the judgment of the Supreme Court in Adalat Prasad v. Roop Lal Jindal & Ors., (2004) 7 SCC 338 and Subramanium Sethuraman vs. State of Maharashtra, AIR 2004 SC 4711. It is this order, which is assailed by the petitioner in this petition.

6. It is vehemently contended by Mr. N. H. Shah, learned senior counsel appearing for the petitioner, that neither under Section 200 of the Code of Criminal Procedure nor under Section 138 read with Section 142 of the Negotiable Instruments Act, a joint complaint is envisaged. He argues that in the instant case, though the respondents claim that there was joint liability towards them to be discharged by the petitioner yet the petitioner had issued three cheques in favour and in the name of respondent No.1 and one cheque of Rs.50,000/- in the name of respondent No.2 and, therefore, a joint notice issued by the respondents through their counsel, Mr. Musadiq Mohammad Shora, was not permissible in law. Rel