Back
2009 Supreme(J&K) 295
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Muzaffar Hussain Attar, J.
Jaindra Manilal Tanna - Appellant
Versus
Ab. Aziz Lokhandwala - Respondent
561-A Nos. 50/2008 And 51/2008 a/w Cr.M.P. Nos.115/2008 And 116/2008
Decided On : 16 July, 2009
Advocate For Appellant: G.A. Lone
Advocate For Respondent: R.A. Jan
The main legal point established in the judgment is that the complaint is a device to set into motion criminal proceedings and need not contain all the facts constituting the offense. The court emphasized the importance of the complaint containing particulars disclosing the commission of the offense and ruled that splitting up the definition into different components of the offense for meticulous scrutiny is not necessary at the initial stage.
Headnote:
Negotiable Instrument Act - Quashment of complaints pending - 138 of Negotiable Instrument Act of 1881 - Summary of Acts and Sections: The court discussed the provisions of Section 138 of the Negotiable Instrument Act of 1881 and emphasized the importance of the complaint containing particulars disclosing the commission of the offense. The court referred to various judgments to establish that the complaint is a device to set into motion criminal proceedings and need not contain all the facts constituting the offense. The court also highlighted the requirement of the complaint to lay the factual foundation for the offense and ruled that splitting up the definition into different components of the offense for meticulous scrutiny is not necessary at the initial stage. The court emphasized that the power of quashing a criminal proceeding should be exercised sparingly and in rare cases. The court also discussed the jurisdiction of the court and the competence of the complaint filed by an attorney holder, citing relevant provisions and case law.
Fact of the Case:
The respondent obtained financial assistance from the Central Bank of India, and due to alleged misconduct of the counsel engaged by the respondent, an ex-parte judgment was passed against the complainant. The complainant and respondent arrived at a memorandum of understanding for a one-time settlement, and the respondent issued cheques to the complainant. The cheques were presented for encashment but were returned by the bank. The complainant sought quashment of the complaints filed against them.
Finding of the Court:
The court found that the complaints were not meritless and dismissed the petitions, ruling that the complaints contained the necessary particulars to disclose the commission of the offense. The court emphasized that the complaint is a device to set into motion criminal proceedings and need not contain all the facts constituting the offense. The court also ruled that the power of quashing a criminal proceeding should be exercised sparingly and in rare cases.
Issues: The issues raised in the petition included the competency of the complaint, the jurisdiction of the court, and the details required in the complaint to disclose the commission of the offense.
Ratio Decidendi: The court emphasized the importance of the complaint containing particulars disclosing the commission of the offense and ruled that splitting up the definition into different components of the offense for meticulous scrutiny is not necessary at the initial stage. The court also ruled that the power of quashing a criminal proceeding should be exercised sparingly and in rare cases.
Final Decision: The court held that the petitions were meritless and dismissed them, ruling that the complaints contained the necessary particulars to disclose the commission of the offense.
2. The facts in brief as narrated in the petitions/ complaints are that the respondent had obtained financial assistance from the Central Bank of India and some proceedings about same were pending before Debts Recovery Tribunal, Mumbai. It is further pleaded in the complaint that because of the alleged misconduct of counsel engaged to defend the respondent in the said proceedings an ex-parte judgment was passed against the complainant. It is further pleaded that the engaged counsel did not even file appeal against the ex-parte judgment. It is further averred in the complaint that the petitioner and respondent arrived at memorandum of understanding for one time settlement of the case of the respondent with the Central Bank of India. It was agreed upon that in lieu of one time settlement, the petitioner will be entitled to receive substantial amount details whereof have been given in the memorandum of understanding. It is further averred that respondent, accordingly, issued cheques of different amounts in the name of Chandini Agencies of which petitioner is owner. It was also agreed in the memorandum of understanding that in case one time settlement will not sail through then the amount received by petitioner will be returned to the respondent. It is further averred that as the petitioner failed to perform his part of duty, he in terms of the memorandum of understanding by way of liquidation of debt/liability issued eight cheques in the amount of Rs.5 lacs each in favour of the respondent. Two cheques bearing No. 158570 and 158572 amounting to Rs.5/- lacs each are subject matter of two complaints which are sought to be quashed. Both the cheques were presented for encashment and collection of amount in J&K Bank Ltd branch K.B. Adda Baramulla. The J&K Bank branch office K.B Adda Baramulla, however, returned the cheques with the memo having endorsement "exceeds arrangement". The notice in both the cases were issued and thereafter complaints filed at Baramulla. The record reveals that the ld. Judicial Magistrate /Sub Judge Baramulla after considering the complaint(s), preliminary statement of complainant as also after perusal of the documents was prima facie satisfied about the commission of offence u/s 138 of Negotiable Instrument Act of 1881 (for short `Act of 1881), process was accordingly issued against the petitioner for his appearance before ld. Judicial Magistrate in both the cases. Both complaints were filed through attorney. The petitioner seeks quashment of complaints.
3. Heard ld. counsel for parties. Considered the matter.
4. Mr. G.A. Lone, ld. counsel for petitioner while arguing the case inter alia stated that the complaint does not disclose commission of offence. Complaint is barred by time and complaint is filed by incompetent person. Ld. counsel referred to and relied upon case titled "Musaraf Hossain Khan v. Bhagheeratha Engg. Ltd & Ors", reported in JT 2006 (3) SC 80 and case titled "M/s Harnam Electronics (p) Ltd and anr v. National Panasonic India Ltd." reported in AIR 2009 SC 1168; case titled Inderjeet Kour, petitioner v. M/s Gandotra Trading & Leasing Corpn., Jammu, respondent" reported in 1998 CRI. L.J. 2659. The ld. counsel while referring to the record submitted that by mere sending of notice from Baramulla, court at Baramulla would not get jurisdiction to entertain the complaint, take cognizance of offence and issue process. Ld. counsel further submitted that the complaints are bereft of details as to when the cheque was presented to the J&K Bank branch Baramulla, when the memo was issued by said bank as also when the notice was issued. The ld. counsel submitted that as all these details are not contained in the complaint so it does not disclose the commission of offence. The ld. counsel further submitted that first notice was issued on 17th July 2007, t
