Point of Law: Question with regard to issuance of notice prior to initiation of proceedings under S.138 of the Act, being triable is to be decided by the trial court and on the basis of same, complaint cannot be ordered to be quashed.

ORDER :

By way of instant petition filed under S.482 CrPC, prayer has been made on behalf of petitioners/accused for quashing and setting aside order dated 3.3.2018, whereby application under Section 319 CrPC filed by the respondent No.2/complainant (hereinafter, ‘complainant’) praying therein to array the petitioners as an accused in case No. 67 of 2016, having been filed by him under S.138 of the Negotiable Instruments Act pending adjudication before Chief Judicial Magistrate, Chamba, Tehsil and District Chamba, came to be allowed.

2. Precisely the facts, as emerge from the record are that the complainant instituted a complaint under S.138 of the Act in the court of learned Chief Judicial Magistrate, Chamba, District Chamba, against respondent No.2/accused-Rishi Rana (hereinafter, ‘accused’), alleging therein that the above named accused approached him in the month of March, 2016, seeking loan of Rs. 5.00 Lakh for his domestic use. Complainant, who had cordial relations with the accused, advanced Rs. 5.00 Lakh in the month of March, 2016 with the understanding that the same shall be returned by the accused within a period of one month. Since the accused failed to make payment in the month of April, 2016, he issued cheque bearing No. 063983 dated 25.4.2016 to the complainant for a sum of Rs. 5.00 Lakh drawn at Punjab National Bank Sultanpur, Chamba, against saving bank account No. 7893002100000314. However, the fact remains that the said cheque on its presentation was dishonoured on account of insufficient funds. Since despite issuance of legal notice, accused Rishi Rana failed to make the payment, complainant instituted proceedings under S.138 of the Act in the court of learned Chief Judicial Magistrate, Chamba.

3. After recording of evidence in the case, complainant preferred an application under S.319 CrPC, (Annexure P-4), praying therein to array petitioners herein as an accused on the ground that the cheque in question was also signed by them. In the aforesaid application, complainant averred that during the course of cross-examination, it transpired that the cheque in question is issued from a current account, which is in the name of the firm and the same has been signed by the persons sought to be arrayed as an accused, in addition to Rishi Rana. Apart from above, complainant also averred that inadvertently notice under S.138 of the Act was only issued to Rishi Rana being the authorized signatory but since the petitioners also signed the cheque, they are required to be arrayed as an accused.

4. Learned court below vide order dated 3.3.2018, (Annexure P-5) allowed the application and issued notice returnable for 5.8.2018 to the petitioners herein. In the aforesaid background, petitioners have approached this court in the instant proceedings, praying therein to set aside order dated 3.3.2018 as well as complaint instituted under S.138 of the Act.

5. Pursuant to notice issued in the instant proceedings, respondent No.1 has filed reply, wherein it is averred that S. 319 CrPC provides that in the course of any inquiry or trial of an a offence it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. Learned counsel for the respondent No.1 argued that once there is no dispute that the cheque in question has been signed by petitioners and the cheque has been issued by the firm, no illegality can be said to have been committed by learned court below, while arraying petitioners herein as an accused in case filed under S.138 of the Act. Above named counsel while placing reliance upon an order dated 3.9.2019 passed by Hon'ble Apex Court in Kishore Sharma v. Sachin Dubey, Cr. Appeal No. 1326 of 2019, argued that otherwise the issue sought to be decided in the instant proceedings being triable one, cannot be decided in the instant proceedings. He