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Gujarat High Court
Judgename :J.R.Vora
STEEL BUILD - Appellant
Versus
K.MUKUND - Respondent
CRIMINAL REVISION APPLICATION 146 of 2001
Decided On : 10/02/2001
Criminal Law – Criminal Trial – Negotiable Instruments Act, 1938 – Section 138 – Criminal Procedure Code, 1973 – Sections164 (4) and 200 – Offence of Dishonored of cheque – Complaint – Petitioners for discharging them for the charges punishable under the Negotiable Instruments Act, 1938 – Complaint came to be filed by present respondent No. 1 under Section 138 of Act against all present four petitioners for the return of two cheques worth – On filing complaint, learned Metropolitan Magistrate issued process against the present petitioners – Petitioners filed discharge application on ground that complaint was not maintainable under Section 138 of Negotiable Instruments Act – Notice issued was not in accordance with law and according to present petitioners, as per reply given by them to above said notice, amount of cheque complained of has been fully paid by petitioners and, therefore, complaint was not maintainable – Held, if any mistake is committed even in failure to record verification, if any prejudice is likely to be caused, same can be caused to complainant and not to accused – When a written complaint is preferred before Magistrate and allegations and accusations are well narrated, what is to be considered in each case is whether defect affects competency of court and occasions in failure of justice – Unless this is established, mere failure to observe mandatory procedural provision, unless failure of justice, and/or prejudice caused to accused is shown, is simply an irregularity which can be cured – By no stretch of reasoning having regard to facts of this case, failure to sign verification by complainant and Magistrate can be labelled as an illegality invariably resulting in quashing of complaint as contended on behalf of petitioners – This is so because written complaint is filed by complainant – Accusations are distinctly narrated in averments made in complaint – Accused have, on service of process, received copy of such complaint – Not only that relying on this complaint, accused has filed an application at Exh. 2 for discharge and dropping of proceedings, there cannot be any prejudice said to have been caused to the accused in such circumstances, by merely failure to sign verification by complainant and by Magistrate – Complainant on solemn affirmation is a mere irregularity, which would not in any way prejudice to the accused, and it cannot be an illegality so as to quash the proceedings – Provsions are altogether different – Confession of accused is high degree evidence against accused – Section 164 (4) mandates safeguards when accused chooses to confess crime and, therefore, the provision is so mandatory that simple defect in procedure may render confession inadmissible. While the purpose behind enacting Section 200 is, as said above, to ascertain exact allegations made in the complaint – Language employed in both the provisions may be similar, but in their effect, both provisions operates in altogether different fields – Revision Application same is hereby dismissed. (Paras 13, 14 and 15)
( 1 ) THIS Revision Application is filed by the original accused of Criminal Case No. 1180/99 filed by the present respondent No. 1 herein in the Court of learned Metropolitan Magistrate, Court No. 10, Ahmedabad, being aggrieved and dissatisfied by the order of learned Metropolitan Magistrate, passed on 19th July, 2000 below Exh. 2 rejecting Application - Exh. 2 filed by the present petitioners for discharging them for the charges punishable under the Negotiable Instruments Act, 1938.
( 2 ) THE brief facts of the case are as under : the above said complaint came to be filed by present respondent No. 1 under Section 138 of the Negotiable Instruments Act against all the present four petitioners for the return of two cheques worth of Rs. l,25,000/ -. On filing complaint, the learned Metropolitan Magistrate issued process against the present petitioners. The petitioners appeared before the learned Metropolitan Magistrate. In response to the process issued, the petitioners filed discharge application on 31st December, 1999, on the ground that the complaint was not maintainable under Section 138 of the Negotiable Instruments Act. The Notice issued was not in accordance with the law and according to the present petitioners, as per the reply given by them to the above said notice, the amount of cheque complained of has been fully paid by the petitioners and, therefore, the complaint was not maintainable. There are disputed facts about the making of payment of the cheques, which are base of this complaint. It was also contended in the application that the verification of the complainant as per Section 200 of the Criminal Procedure Code was not signed by the complainant and the Magistrate and, therefore, illegality was committed and the proceedings are required to be dropped as per Criminal Procedure Code. The contentions raised on behalf of the petitioners were turned down by the learned Metropolitan Magistrate and the application Exh. 2 came to be rejected and hence this Revision Application by original accused.
( 3 ) LEARNED Advocate Mr. K. A. Puj for the petitioners, learned Advocate Mr. F. B. Brahmbhatt for respondent No. 1 and learned APP Mr. B. Y. Mankad for respondent No. 2 - State of Gujarat, were heard.
( 4 ) LEARNED Advocate Mr. K. A. Puj for the petitioners vehemently urged that in all the petitioners were indebted to respondent No. 1 to the extent of Rs. 1 lac only. For that, three cheques were given to respondent No. 1 and these cheques were dated 5. 4. 1999 of Rs. 50,000. 00, dated 26. 6. 1999 of Rs. 25,000. 00, and 13. 7. 1999 of Rs. 25,000. 00. Out of these cheques, Cheque dated 5th April, 1999 and 26th June, 1999 were encashed and the payment was made to the present respondent No. 1 and on receipt of the notice of the respondent No. 1, the third cheque which was of dated 13th July, 1999, which was not cleared, the payment of the same was made by Demand Draft No. 008659 dated 6th August, 1999 for Rs. 25,000. 00. Thus the debt of Rs. 1 lac was duly discharged to the respondent No. 1 and on the date of the complaint, there was no debt so as to invite Section 138 or Section 142 of the Negotiable Instruments Act. It was urged that the complaint, on these grounds was not maintainable and accused deserves discharge. As per the contention, it is also stated that prior to this, on 6. 2. 1999, a cheque of Rs. 1 lac bearing No. 093615 was given to respondent No. 1 by the present petitioners which was not cleared and, therefore, in lieu of this cheque, the above said three cheques were given to respondent No. 1. It is contended that in fact cheque of Rs. 1 lac which was dated 10. 2. 1999 was required to be handed over back to the present petitioners which respondent No. 1 did not and dishonestly claims double payment. Therefore, it was urged that since there was no debt, the complaint is not maintainable under Section 138 of the Negotiable Instruments Act and required to be quashed and accused deserves discharge. It
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