R.S.Chauhan, J. - (1.) THE petitioner is aggrieved by the order dated 29.9.2005. passed by the Judicial Magistrate No.1. Bharatpur. whereby the learned Judicial Magistrate had taken cognizance against the petitioner for offence under Section 138 of Negotiable Instruments Act, 1881 ('the Act', for short) and by the order dated 13.4.2010, passed by the Additional Sessions Judge No.2, Bharatpur, whereby the learned Judge has dismissed the revision petition filed by the petitioner challenging the cognizance order and has confirmed the cognizance order mentioned above.
(2.) IN short, the facts of the case are that Anil Scale INdustries, non-petitioner No.2, had filled a complainant under Section 138 of the Act against the present petitioner and against M/s Century Steels, non-petitioner No.3, before the learned Judicial Magistrate. IN the complaint, it was alleged that the petitioner is the owner of M/s. Century Steels. According to the complainant, they had entered into a contract with M/s. Century Steels for supply of 200 Mt. Tn. M.S. Scrap at the rate of Rs.11,900 per ton excluding Tax, 200 Mt. ton. M.S. Heavy Rolling Scrap at the rate of Rs.15,900 per ton excluding Tax, and 1.00 Mt. ton. Aluminum Cable at the rate of Rs.34,000 per ton. The transaction was for a total amount of Rs.24,00.000. The said amount was advanced to M/s. Century Steels. However, subsequently, M/s. Century Steels neither supplied the goods, nor returned the amount of Rs.24,00.000. According to the complainant, repeatedly he contacted the petitioner, however, the petitioner showed his inability to supply the goods. Subsequently, a cheque dated 18.10.2004, for an amount of Rs.27,00,000, drawn on Union Bank of INdia, IRC Village, Bhubaneswar, was issued for account No.523201010013017 belonging to M/s. Century Steels. According to the complainant, when the cheque was submitted for encashment, it was dishonoured for sufficient funds. Therefore, he issued a notice. However ; despite the service of notice, neither the petitioner, nor M/s. Century Steels made the payment. Hence, the complainant filed the said complaint. Vide order dated 29.9.2005; the learned Magistrate took cognizance for offence under Section 138 of the Act against both the petitioner and M/s. Century Steels. Aggrieved by the cognizance order, the petitioner challenged the same before this Court by way of filing a criminal misc. petition. However, vide order dated 8.7.2009, this court sent the case back to the Sessions Judge, Bharatpur directing the learned Judge to treat the petition as one filed under Section 397 Cr.P.C. and directing him to decide in accordance with law. It is pertinent to mention that during the pendency of the criminal misc. petition, Mr. V.K. Subash had filed an affidavit before this Court wherein he had clearly stated that he is the proprietor of M/s. Century Steels. He had further stated that the cheque, in question, was signed by him. A certificate issued by the Union Bank of India dated 3.5.2007 was also submitted wherein the Union Bank of India, IRC Village, Bhubaneswar had clearly stated that the account, in question, belonged to M/s. Century Steels and was opened by Mr. V.K. Subash. Interestingly. these relevant documents were equally placed before the learned Judge. However, vide order dated 13.4.2010. the learned Judge has dismissed the revision petition. Hence, this petition before this Court. Mr. Kapil Gupta, the learned counsel for the petitioner has vehemently contended that the complaint has been filed under Section 138 of the Act. Although the complainant has claimed that the petitioner happens to be the owner of M/s. Century Steels, but the fact remains that he is merely an employee of M/s. Century Steels. According to Mr. V.K. Subash, it is, in fact, he who is the owner of M/s. Century Steels. Moreover, according to Mr. V.K. Subash, the present petitioner happens to be merely an employee and is a authorized signatory on behalf of M/s. Century Steels. It is only in his capacity as an employee that he had negotiated with the complainant. Moreover and most importantly, the cheque was never issued by the petitioner. The learned counsel has drawn the attention of this Court to the copy of the cheque (Annex-4), to the affidavit of Mr. V.K. Subash (Annex-9), to a letter dated 30.8.2007 written by Mr. V.K. Subash (Annex-10), to another letter dated 7.12.2007 written by Mr. V.K. Subash (Annex-12) in order to buttress his contention that the signature, made in the affidavit and in the letters mentioned above, are exactly the same signatures as contained in the cheque in question. Thus, apparently the cheque was issued not by the petitioner, but by Mr. V.K. Subash. He has also drawn the attention of this Court to the affidavit earlier filed by Mr. V. K. Subash wherein he has clearly stated that the petitioner is being falsely implicated in the present case; he has also stated that it is he who is the owner of the M/s. Century Steels and the person who has issued the cheque. He has also drawn the attention of this Court to the certificate issued by the Union Bank of India (Annex-5) wherein the Bank has clearly stated that the account No.523201010013017 is an account belonging to M/s. Century Steels and the proprietor happens to be Mr. V.K. Subash. Thus according to the learned counsel, the liability of the payment of the amount of cheque is squarely that of Mr. V.K. Subash and not of the petitioner. Moreover, far Mr. V.K. Subash has already paid Rs. 13,60.000 out of Rs.27,00,000. Hence, according to the learned counsel, the learned trial court was not justified in taking the cognizance against the present petitioner. Moreover, once all the relevant documents were readily available before the learned Judge. the learned Judge should have quashed and set aside the cognizance order. Furthermore, the reasoning given by the learned Judge that he is not able to decide as to whose signature exist on the cheque in question, such a reasoning is highly fallacious. For, the learned Judge does have the power and the ability to compare the signatures on the cheque with the signatures of Mr. V.K. Subash as gven in the documents mentioned above. According to the learned counsel, a bare perusal of the documents and the cheque would clearly reveal that the signatures are identical. Thus, the learned Judge could not have abrogated his responsibility by merely observing that he is not in a position to decide as to whose signature exist on the cheque. Moreover, it is an abuse of process of the court and of the law to file a frivolous complaint against the petitioner. Admittedly, the cheque was issued on behalf of M/s. Century Steels whose proprietor happens to be Mr. V.Ks. Subash and not the petitioner. Lastly, since part of the amount has already been paid by M.E. Subash to the complainant, and since the complainant would be interested only in recovering of the amount, it is immaterial as far as the complainant is concerned, as to who is being prosecuted. On the other hand, Mr. G.S. Gill, the learned counsel for the respondent No.2, has strenuously contended that entire negotiation were carried out by the petitioner with non-petitioner No.2. Secondly, non-petitioner No.3 happens to be the authorized signatory of the Company. Therefore, he is liable to be proceeded under Section 141 of the Act. Thirdly, the learned Judge was certainly justified in concluding that he is not in a position to compare the signatures on the cheque vis-a-vis the signatures on the documents produced before the court. Therefore, he has supported the impugned order dated 13.4.2010 as well as the order dated 29.9.2005.
(3.) HEARD the learned counsel for the parties, perused the impugned orders, and examined the documents submitted before this Court. It is, indeed, a settled position of law that a Judge does not sit like a mute witness. In fact. Judges are required to playa pro-active role while deciding the cases. A bare perusal of the cheque, cheque No.523201010013017, and all the annexures mentioned above, would clearly reveal that the cheque has been signed not by the petitioner, but by Mr. V.K. Subash. Moreover, the fact that the cheque was signed and was given to the complainant has been admitted by Mr. V.K. Subash in the affidavit filed by him. Therefore, the learned Judge is certainly not justified in concluding that he is not in a position to decide as to who has signed the cheque. It is interested to note that Mr. V.K. Subash does not claim that his signatures have been forged by the petitioner. In fact, he has honestly admitted that the signatures are, indeed, his and the cheque was given by M/s. Century Steels of which he happens to be proprietor of. Thus, the petitioner is justified in claiming that the cheque was not issued under his hand. As far as the contention with regard to his liability is concerned, the learned counsel for the complainant is not justified in claiming that he can be roped in as he is the authorized signatory for the Company. A bare perusal of the complaint nowhere reveals that the complainant is trying to rope the petitioner on the basis of vicarious liability. In fact, according to the complainant, it is a frontal attack on the petitioner. It is highly unlikely that having entered into a contract, that too for Rs.27,00,000, the complainant would be oblivious as to who the proprietor of the firm is. Therefore, the entire complaint happens to be mis-guided towards the petitioner. ;