Decided on May 18,2012

State Of Uttarakhandand Another Respondents


Servesh Kumar Gupta - (1.) BY means of this petition, a prayer has been advanced to quash the proceedings of criminal complaint case no. 44 of 2006 titled as Soorvir Singh Negi Vs. Rajendra Kumar Singhal' and order of cognizance dated 17.03.2006 passed therein. It is pertinent to mention that respondent no. 2 Soorvir Singh Negi (hereinafter called as 'Mr. Negi') has been served sufficiently but neither anyone has turned up on his behalf nor any counter affidavit has been filed, so this Court rendered hearing to learned counsel for the applicant and learned Brief Holder for the State. Having heard learned counsel for the parties, it transpires that Rajendra Kumar Singhal (hereinafter called as 'Mr. Singhal') drawn a cheque no. 263336 dated 25.09.2005 from his saving bank Account No. 3584 maintained in the Bank of Baroda, Rishikesh Branch, District Dehradun. This cheque worth Rs. 2,09,000/ - was issued for payment to Mr. Negi in discharge of debt due to him. When the said cheque was submitted by Mr. Negi for encashment through his banker State Bank of India, Bauradi Branch, District Tehri Garhwal the same was dishonoured and the slip of dishonour was received by Mr. Negi on 21.12.2005, as per averment disclosed in the complaint. Consequently, he issued a notice to Mr. Singhal, as envisaged under Section 138 (b) of the Negotiable Instruments Act, 1881 (hereinafter called as 'Act'). This notice was returned by Mr. Singhal, so it was received by Mr. Negi, who assumed that letter had been served upon Mr. Singhal on 31.01.2006 so it was incumbent upon him to make payment till 15.02.2006. Mr. Singhal did not make any payment with the result Mr. Negi instituted a complaint on 06.03.2006 i.e. within one month from the date when cause of action allegedly arose.
(2.) LEARNED Magistrate, after recording statement of complainant and going through papers filed along with the complaint, took cognizance against Mr. Singhal for the offence under Section 138 of the Act on 17.03.2006. He appeared in the court, being a summon trial matter, his statement was recorded under Section 251 Cr.P.C. on 03.11.2006. The stand of Mr. Singhal was that he never issued any cheque to Mr. Negi. A lad namely Santosh Kukreti, working in his office, possessed the blank cheques bearing his signature, so Mr. Negi in collusion with Santosh Kukreti got the impugned cheque. Learned counsel for the applicant reiterates this argument and drawn attention of this Court towards supplementary list of witnesses filed by Mr. Negi before the court below wherein name of Santosh Kukreti appears as additional witness of complainant. Learned counsel for the petitioner has argued that there is no provision in Cr.P.C. to file additional list of witnesses and name of Santosh Kukreti should have been appeared with the first list, which was filed by the complainant on 17.03.2006, at the time of taking of cognizance.
(3.) THESE arguments do not impress this Court because even if, there is no provision to file supplementary list of witnesses, all the same it does not vitiate the entire proceedings of the complaint. However, it can significantly be noted that Mr. Negi in order to bring the complaint within time limitation has concealed so many dates before the court below. Although there was a statutory limitation of six months for presentation of cheque but Mr. Negi has not mentioned as to when this impugned cheque was submitted by him for encashment. The circumstances could not be explained as to why this cheque was presented so late by Mr. Negi. Even if it was presented so late, no date of presentation of the said cheque for encashment has been disclosed by Mr. Negi. Accepting the averment of Mr. Negi that on 21.12.2005 slip of dishonour was received by him then also he has not mentioned any date as to when he had issued the notice, as envisaged under Section 138 (b) of the Act. He has again concealed the date, as to when the notice was received back unserved. Just on the basis of his surmises, he assumed that on 31.01.2006 entire facts regarding dishonour of cheque had come in the notice of Mr. Singhal. There is no basis or logic, disclosed by Mr. Negi for this assumption. For the foregoing reasons, this Court feels that entire facts have not truly been explained by Mr. Negi in the averment of complaint and the learned Magistrate was quite oblivious of the said facts. It appears that being oblivion of the said concealment on the part of Mr. Negi, impugned order of cognizance has been passed, which is liable to be quashed thus. Accordingly, the petition is allowed. Impugned order of cognizance dated 17.03.2006 as well as entire proceedings of criminal complaint case no. 44 of 2006 pending in the Court of Special Judicial Magistrate, Tehri Garhwal is hereby quashed.;

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