Decided on October 19,2006

Hardesh Kumar Singh Appellant
Kamal Auto Body Industries Respondents


- (1.) HARDESH Kumar Singh, Deputy Commissioner, Jammu, and functioning additionally as Chairman, Board of Administrators, Jammu Co -operative Limited, Jammu, a Society registered under the Cooperative Societies Act, and Kapil Sharma, Deputy Registrar, Agriculture, functioning additionally as General Manager, of the Society, facing prosecution under Section 138 of the Negotiable Instruments Act, 1881, have approached this Court seeking quashing of criminal proceedings initiated on a complaint of M/s Kamal Auto Body Industries, Digiana, pending before learned Sub -Registrar (Judicial Magistrate First Class), Jammu.
(2.) M /s Kamal Auto Body Industries, Digiana, Industrial Estate, Jammu, the complainant, filed a complaint under Section 138 of Negotiable Instruments Act, 1881, against the petitioners and one Ram Pal Sharma, Ex -General Manager of Jammu Co -operative Wholesale Limited, Jammu. It was alleged in the complaint that there was no Board of Administrators of the Society and because of this, the Society was being controlled and managed by Hardesh Kumar Singh, petitioner -1, who was responsible for each and every act of the management and for the conduct of the business of the Society. Kapil Sharma, petitioner -2, is also stated to be equally responsible for the act done on behalf of the Society. With this prelude, the complaint proceeds to say that Ram Pal Sharma, the ex -Ex -Manager of the Society, Incharge of and responsible to the Society for the conduct of its business, issued a payees cheque bearing No. 1961476 dated 24 -06 -2004 for an amount of Rs. 1,87,000/ - in favour of the complainant firm for the amount stated to have been due to the complainant from the Society. This cheque, when deposited with the complainants bankers, UCO Bank, Digiana, was reported by the Societys bankers with the remarks "funds insufficient". This information of dishonour of the cheque was sent through registered post, which was replied by the petitioners. No payment having been made within 15 days, the complainant alleges, amounted to commission of an offence under Section 138 of the Negotiable Instruments Act, 1881.
(3.) LEARNED Sub -Registrar, Judicial Magistrate First Class, Jammu, recorded the statement of one Kamal Sagar Jain on 10 -02 -2005. He states in his deposition that there was no Board of Administrators of the Society and the business of the Society was being transacted by petitioner -1 as Chairman, and petitioner -2 as General Manager, and both these persons were equally responsible for the business of the Society: On the basis of the statement of the complainant, learned Magistrate proceeded to record the following order on 10 -02 -2005: "The present complaint was transferred to this Court by learned CJM, Jammu, for disposal under law. Perused the office report. Let it be entered in the relevant Register. In pursuance thereof, preliminary statement of the applicant was recorded be made part of the file. Perusal of the contents of the complaint, documents annexed with the same, perusal of memo issued by the Bank reveals that cheque in question has been dishonoured for the reason "insufficient "funds". Complainant has commenced the proceedings under Section 138 of Negotiable Instruments Act on that basis. From the contents of complaint, documents annexed with it prima facie commission of offence under Section 138 RPC is disclosed. Issue summons to the respondents/accused persons to appear in the Court and answer the complaint. Let the summons be served through Incharge/SHOs, Police Posts/Police Stations concerned. Sd/ - Judicial Magistrate Sub Registrar, Jammu.";

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