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Gujarat High Court
Judgename :K.J.VAIDYA
DIPENDRA G.CHOKSI - Appellant
Versus
DIPAK CHIMANLAL PATEL - Respondent
MISC.CRI.APPLN. 1851 of 1990
Decided On : 01/07/1997
Bearing in mind first of all the Clause (a) to proviso to Sec. 138 of the Act, it is clear that all the three cheques were presented to the bank within the stipulated period of six month from the date on which they were drawn. Secondly , bearing in mind Clause (b) of proviso to Sec. 138 of the Act, It is further clear that the complainant was a `holder in due course and that he had made demand for the payment of the amount in question by giving a statutory notice in writing to the petitioners-drawers of the cheques within 15 days of the receipt of the information by him from the bank regarding return of the cheque as unpaid. Thirdly bearing in mind the proviso (c) to Sec. 138 of the Act, the petitioners-drawers of the cheques in question have failed to make payment of the amount in question to the complainant within 15 days of the receipt of the said notice. Not only that but Fourthly, bearing in mind the provision regarding cognizance of offence engrafted in Sec. 142 (a) of the Act, the respondent No. 1 who is `a holder in due course of the cheque has filed a complaint in writing, and, Fifthly, as further envisaged in Sec. 142 (b) of the Act, the complaint was made within one month from the date on which the cause of action arose under Clause (c) of the proviso to Sec. 138 of the Act. In this view of the matter, there is indeed no legal flow on the basis of which a petitioner can be permitted to urge to quash the process.
[Para 4.1]
Once this legal position is made clear and understood properly, it is quite trite to say that because the cheque in question having once returned with an endorsement `refer to drawer and was presented second time, it was done with a view to by-pass the provisions of the Act. Thus, having regard to the facts and circumstances of the case as stated in the complaint, the complaint is filed within the stipulated statutory period of one month from the date of arising of the cause of action. In this view of the matter, there is indeed nothing on the basis of which remotely even it can be said that Secs. 138 and 142 of the Act have not been complied with warranting quashing of the process.
[Para 5]
(b) Criminal Procedure Code, 1973 - Sec. 482 - Complaint filed for offence under Sec. 138 of Negotiable Instruments Act also further discloses material ingredients which constitute offence under Sec. 420 IPC - Jurisdiction of Court - Not confined merely to taking cognizance of offence under Sec. 138 of the Act - Court which is bound to do justice must not ignore Sec. 420 of Penal Code but should issue process for the allege offence as well.
Whenever any complaint is filed merely and only for the alleged offence under Sec. 138 of the Act then even it is the foremost duty of the learned Magistrate to carefully screen and examine each and every allegation in the complaint and if there is/are a manifest circumstances prima facie constituting an offence of cheating under I.P. Code, then while taking cognizance and issuing the process he should see to it that it is not confined only to Sec. 138 of the Act but shall also issue process under Sec. 420 of the I.P. Code as well. The learned Magistrates should know and know for ever and accordingly bear in mind that doing justice is not a mere a matter of formality, but it is a matter of substance, where person committing offence under several acts should be duly served with processes for all the alleged offences.
[Para 6]
( 1 ) "whether in cases wherein the allegations made in the complaint filed by a drawee of the cheque against the drawer under Sec. 138 of the Negotiable Instruments Act, 1881, also further discloses the material ingredients which prima facie do constitute an offence punishable under Sec. 420 of Indian Penal Code, should the Court to which such a complaint is presented for taking the cognizance of offence, confine itself merely to issue process under Sec. 138 of the Act (?) or secondly whether under such circumstances it is equally the duty of the Court also to see that alongwith the process to be issued for the alleged offence under Sec. 138 of the Act it also issues process under Sec. 420 of the Code against the accused ?"
( 2 ) THE respondent No. 1 Dipak Chimanlal Patel-Jigar Engineering Industries, g. I. D. C. Vatva, Ahmedabad, filed a complaint before the learned Metropolitan magistrate Court No. 7, Ahmedabad, against the petitioners-Dipendra G. Choksi and Ashaben G. Choksi-partners, Director and Managing Director respectively of sunchem Enterprise, situated at Plot No. 41, G. I. D. C. , Vatva, Ahmedabad, for the alleged offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short "the Act" ). According to the complainant, he is doing the business of manufacturing and selling ice. The petitioner Nos. 1 and 2 (original accused Nos. 1 and 2) purchased ice from him on several occasions. Accordingly, it is the case of the complainant that the petitioners first purchased ice from him in between the period from 1-2-1989 to 28-2-1989 to the tune of Rs. 43,768-28 Ps. ; thereafter from 1-3-1989 to 31-1-1989 to the tune of Rs. 20,849-00 Ps. ; and from 1-4-1989 to 30-4-1989 to the tune of Rs. 2,810-80 Ps. on credit. In three transactions, in all the accused purchased the goods worth Rs. 67,428-08 Ps. Towards these three transactions, according to the complainant, the petitioners gave him three different cheques of different dates, which he had deposited in the bank within the period of six months from the date on which it was drawn, however, the same were returned by the concerned bank with the endorsement "refer to drawer". Under the circumstances, when the complainant contacted the petitioners, they assured that the outstanding bill amounts would be paid up in few days with a request to present the cheque once again in the bank. This was done, however, once again all the aforesaid three cheques bounced back with an endorsement "refer to drawer" as there was no balance in the account of the petitioners. It is further alleged that despite the repeated demands, since the outstanding amounts towards bills were not paid, the complainant gave a Regd. Notice on 20-6-1989 to the, petitioners requesting them to remit the outstanding bill amount with interest, giving further warning that if any default was committed in payment of the money, the complainant would be constrained to file a criminal complaint. Despite service of the said notice, since the outstanding bill amounts were not paid by the petitioners, the respondent No. 1 filed a complaint in the Court of the learned Metropolitan Magistrate Court No. 7, ahmedabad on 24-7-1989 against them, on the basis of which, the Court issued the process for the alleged offence under Sec. 138 of the Act, giving rise to the present petition under Sec. 482 of the Code of Criminal Procedure, 1973 inter alia praying for quashing the same.
( 3 ) THIS matter was called out yesterday twice, but Mr. A. S. Kothari, learned advocate for the petitioner and Mr. S. V. Raju, the learned Advocate for the respondent No. 1 were absent, the matter was adjourned to today. Today also when the matter was called out, both the learned Advocates were absent. It is under these circumstances that with the assistance of Mr. D. N. Patel, the learned A. P. P. , this court has heard and disposed of the same.
( 4 ) IN order to find out whether there was any breach of compliance of any pro
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