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Punjab and Haryana High court
Hon'ble K. S. Kumaran, J.
Criminal Misc. No. 11506-M of 1998
Decided on 14.9.2001
M/s. Kumar Rubber Industries Kapurthala
versus
Sohan Lal
The legal principle established is that a complaint with a defective foundation, which goes to the root of the matter, is non-maintainable and cannot be amended or supplemented to rectify the defect.
Headnote:
Negotiable Instruments Act - Complaint based on Cheques 466337 to 466340 - Summary
Fact of the Case:
The complainant, Sohan Lal Viz, retired from a partnership and claimed a sum of Rs. 5,18,698.33 due to him from the partnership. Cheques were issued to discharge this liability, but were returned uncashed. The accused petitioners approached the court to quash the complaint and summoning order, alleging discrepancies in the cheques mentioned in the complaint and those produced in evidence.
Finding of the Court:
The court found that the complaint was based on one set of cheques, while a different set was produced in evidence. The court noted the non-application of mind by the magistrate and the defective foundation of the complaint, leading to its non-maintainability.
Issues: The issues revolved around discrepancies in the cheques mentioned in the complaint and those produced in evidence, as well as the maintainability of the complaint based on the defective foundation.
Ratio Decidendi: The court held that the defective foundation of the complaint, which went to the root of the matter, rendered it non-maintainable. The court also noted the non-application of mind by the magistrate and the inability to amend or supplement the complaint to rectify the defect.
Final Decision: The court allowed the petition and quashed the complaint and summoning order, finding them non-maintainable due to the defective foundation and non-application of mind by the magistrate.
K. S. Kumaran, J. :1st respondent - Sohan Lal Viz lodged a complaint under Section 138 of the Negotiable Instruments Act (Annexure P -1) before the Judicial Magistrate 1st Class, Jalandhar against petitioners—(1) M/s. Kumar Rubber Industries, (2) Ashok Kumar Viz (partner of Kumar Rubber Industries) and 2nd respondent—Mrs. Neelu Viz (also partner of Kumar Rubber Industries), wherein the following material allegations are found.
2. The complainant—Sohan Lal, his sons Ashok Kumar, Arun Kumar and Neelu wife of Ashok Kumar were partners of the firm—M/s. Kumar Industries as per the partnership deed dated 1.10.1995. On account of disputes amongst the partners, complainant—Sohan Lal and his son—Arun Kumar retired from the partnership by the retirement deed dated 17.6.1996. At that time, the account of the partnership were gone into and a sum of Rs. 5,18,698.33 was found due to the complainant from the partnership by way of his share of the assets which he was surrendering to the continuing partners. This amount was payable by the containing partners namely, Ashok Kumar and Neelu and in order to discharge the above said liability, Ashok Kumar issued cheques detailed as follows :
(1) No. 466337 dated 18.11.1996 for Rs. 95,561/-,
(2) No. 466338 dated 23.12.1996 for Rs. 1,23,137.33,
(3) No. 466339 dated 23.1.1997 for Rs. 1,50,000/-,
(4) No. 466340 dated 28.2.1997 for Rs. 1,50,000/-.
In favour of the complainant drawn on Canara Bank Jalandhar for and on behalf of the firm and the partners. At the time of issuing the cheques, the accused assured that they would be honoured. The accused after issuing the cheques, requested the complainant to delay the presentation of these cheques for some time as he had not been able to arrange for the requisite funds to meet the cheques, which request was conceded by the complainant.
3. On 24.2.1997, accused handed over to the complainant a banker cheque No. 800757 dated 24.2.1997 for Rs. 63,561/- issued by Canara Bank, Mai Hiran Gate, Jalandhar and told him to adjust the said payment towards cheque No. 466337 dated 18.11.1996 promising that the balance amount of the cheque would be paid in cash on the next day but he did not do so.
4. The complainant presented the aforesaid four cheques in Canara Bank, Mai Hiran Gate, Jalandhar City through his bankers — Punjab National Bank, Jalandhar City for encashment but they were returned uncashed by memos dated 28.2.1997 and 18.3.1997 with the remarks that there was no sufficient balance to meet these cheques. The complainant got a legal notice dated 18.3.1997 issued to the accused through registered post calling upon them to make the payment on account of the dishonoured cheques, but they have failed to do so. Accused — Ashok Kumar and Neelu are actively engaged in the day to day business of the firm and are thus responsible for the conduct of the business of the firm. Therefore, they along with the firm, are liable for the commission of the offence punishable under Section 138 of the Negotiable Instruments Act.
5. Taking into consideration the preliminary evidence and the materials placed the learned J.M.I.C., Jalandhar ordered the accused to be summoned under Section 138 of the Negotiable Instruments Act by order dated 9.8.1997 (Annexure P-2).
6. The petitioners have, therefore, approached this Court under Section 482 Cr.P.C. for quashing the complaint (Annexure P-1) and the summoning order (Annexure P-2) wherein they have mainly alleged as follows :-
7. The accounts were settled and post-dated cheques were issued. However, after the execution of the retirement deed dated 17.6.1996, some disputes arose between the parties as the properties owned by the firm were illegally held, for which the petitioner had to seek the help of the police to settle the pending dispute. The amount covered by Cheques No. 466337 to 46634 was duly received and the receipts against these cheques were also issued in favour of the petitioner. Another sum of Rs. 63,651/- was also
