Jitendra Chauhan, J. (Oral)

The present petition under Section 482 of the Code of Criminal Procedure has been filed for quashing the complaint No. 460 dated 12.03.2010, under Section 138 of the Negotiable Instrument Act (for short ' the Act') read with Section 420 of the Indian Penal Code and the summoning order dated 12.03.2010 passed by the Court of Judicial Magistrate 1st Class, Patiala.

The learned counsel for the petitioner contends that the petitioner did not receive any legal notice sent through counsel. Even a copy of the legal notice brought on the record by respondent/complainant does not bear the signatures of the learned counsel through whose office, the notice was allegedly served upon the petitioner. It is further asserted that the complete detail of the loan advanced to the petitioner is also not reflected in the complaint. The notice was sent on the incorrect address. The learned counsel further submits that the original complaint filed in Court, too, is not signed by the complainant and it is only signed by the counsel. Therefore, it is to be quashed being not filed by a duly authorized person.

Lastly, it is asserted that the petitioner had never issued cheque to the complainant. Therefore, the learned counsel prays that the complaint deserves to be quashed.

On the other hand, the learned counsel for the respondent submits that the cheque was duly issued by the petitioner to discharge his liability. The legal notice was sent through registered post, receipt of which is Ex.C4. Even, if the details of the loan did not reflect in the impugned complaint but the cheque was duly signed by the petitioner in discharge of his liability.

This Court has carefully considered the rival contention of the parties and have carefully gone through the lower court record. The relevant provisions applicable to the case are reproduced hereunder:-

Section 2(d) of the Code of Criminal Procedure defines the complaint as under:-

“Section 2(d) 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.”

Section 190 of the Code reads as under:-

190. Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection,

(2) may take cognizance of any offence-

a. upon receiving a complaint of facts which constitute such offence;

b. upon a police report of such facts;

c. upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

2 The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

Section 94 of the Negotiable Instruments Act, 1881 which is reads as under:-

“94. Mode in which notice may be given.

Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment, that the instrument has been dishonoured, and in what way, and that he Will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party