Dishonour of Cheque--Cause of Action--Has to be construed with a view point of the payee for the purpose of filing the complaint by him and not as per the wishes of the defaulter accused.

Mr. Mehinder Singh Sullar, J.: (Oral) - The matrix of the facts & material, culminating in the commencement, relevant for disposal of the instant petition and emanating from the record, is that, petitioners-accused M/s Rattan Industries Ltd. through its Director Rakesh Bansal, had purchased hosiery items, from complainant-respondent Shruti Gupta wife of Rohit Gupta, sole proprietor of M/s Bharti Knits (for brevity “the complainant”) at Ludhiana, during the financial year 2011-12 against the credit from time to time. The complainant-company is stated to have maintained regular account books during the course of its business, which are duly audited by the Chartered Accountant. The complainant repeatedly requested the petitioners to make payment in lieu of hosiery goods, but in vain. Ultimately, they issued two cheques, bearing Nos.122394 dated 29.12.2011 for an amount of ` 12,40,000/- & 122396 dated 29.1.2012 for a sum of ` 12,31,250/-, drawn on ING Vysya Bank Ltd. East of Kailash Branch, New Delhi to the complainant at Ludhiana. The complainant presented the indicated cheques for collection through its banker Punjab National Bank, Ludhiana, but the same were received back dishonoured with the memo dated 27.3.2012, containing remarks “Funds Insufficient”. Thereafter, the complainant served a registered notice dated 19.4.2012 upon the petitioners-accused from Ludhiana, through Avinash Chander Gupta and Gaurav Gupta, Advocates of Ludhiana for payment of the dishonoured cheques within fifteen days, but in vain.

2. Leveling a variety of allegations and narrating the sequence of events in detail in the complaint, in all, the complainant claimed that since the pointed cheques issued by the petitioners-accused were dishonoured and even they did not make the payment, despite issuance of notice, so, they have committed the offences punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as “the NI Act”) and Section 420 IPC. In the background of these allegations, the complainant filed the criminal complaint (Annexure P1) against the petitioners-accused for the commission of the indicated offences.

3. Taking cognizance of the matter and after considering the preliminary evidence, while dismissing the complaint against the other accused, the trial Court summoned the present petitioners-accused, to face the trial for the commission of offence punishable under section 138 of the NI Act, vide impugned summoning order dated 13.7.2012 (Annexure P2), which, in substance, is as under :-

“Complaint put up today. It be registered. Affidavit of CW-1 along with documents Ex.C1 to Ex.C13 and he closed the preliminary evidence vide separate statement.

Heard on the point of summoning. Attorney for the Complainant has stepped into witness box as CW1 and narrated the whole sequence of events in minute details through affidavit, as got detailed by him in the written complaint. He has placed on record all relevant documents including the disputed cheque memo, legal notice, postal receipts etc.

After perusing the statement of complainant and conducting a document based enquiry, there is prima facie sufficient material to issue process against accused no.2 (being director of accused no.1) who as per the documents placed on file, is the drawer/signatory of the cheque in question u/s 138 of Negotiable Instruments Act. It is further pertinent to add here that although the accused is/are residing beyond the local jurisdiction of this Court nevertheless in view of the law laid down in Apex Health Care Private Limited and others Vs. M/s Alchemist Hospitals Limited (Crl.Misc. No.14352 of 2009, Date of Decision : August 18, 2010) the provision of Section 202 Cr.P.C. directing a Magistrate to hold an enquiry and postpone the issuance of process is not applicable to the proceedings under Section 138 of the Act. Accordingly, accused no.1 and 2 are ordered to be summoned to face trial for above said offence on filing of P