- (1.) AS both these criminal misc. petitions arise out of the Complaint No. 197/ 98 filed by the respondent and the question involved in them are identical, therefore, they are being decided by a common order.
(2.) THE petitioners, in these petitions, have challenged the order dated 2.7.1999 passed by the learned Judicial Magistrate No. 1, Ajmer, whereby he has rejected the objections raised by the accused-petitioners against the order of taking cognizance. Being aggrieved of the said order, the petitioners had filed revision petitions before the learned Sessions Judge, which came to be decided by the Special Judge, SC/ST Court, Ajmer, whereby he had dismissed the same and affirmed the order passed by the learned Magistrate. Broadly speaking, the facts of the case are that a private complaint came to be lodged by Sunil Mittal, Director, Mittal Capital India Ltd. in the Court of Judicial Magistrate, 1st Class No. 1, Ajmer, against seven persons including the petitioners for the offence under Section 138 of the Negotiable Instruments Act, 1881. It was stated in the said complaint, inter alia, that the accused No. 1 M/s. Sippy Films had taken financial assistance to the tune of Rs. 25 lacs as a loan from M/s. Mittal Capital Service Private Ltd. The said firm and subsequently changed its name as M/s. Mittal Capital India Ltd. Further, it was averred in the complaint that a part of the aforesaid amount was repaid, through different cheques, on behalf of accused No. 1. But the cheques were not encased for want of sufficient amount in the account. It was also stated in the complaint that when the cheques were given to the complainant, an assurance was given to him that the cheques shall be encashed on the date for which it was being issued. On the said assurance, the cheques were said to have been received but when they were submitted for encashment, the same were dishonoured and remain unpaid.
(3.) THE said complaint was filed on 7.11.1998. Thereafter, the statement of the complainant was recorded on 10.11.1998. On the basis of the complaint and the evidence on record, the learned Magistrate took cognizance for the offence under Section 138 of the Negotiable Instruments Act, vide his order dated 11.11.1998 and issued process against the accused persons. After appearance before the learned trial Court, through their Counsel, applications were filed on behalf of the accused persons. One such application was moved under Section 204, Cr.PC, on 23.2.1999, raising objections against taking of cognizance. The learned trial Court, after considering their applications, rejected the same, vide its order dated 2.4.1999.;