Bombay High Court
Gulam Taher Gulam Mustafa vs Abdul Mukhtar Abdul Gaffar on 26 November, 2024
2024:BHC-AUG:27999
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
924 CRIMINAL WRIT PETITION NO. 1669 OF 2022
GULAM TAHER GULAM MUSTAFA
VERSUS
ABDUL MUKHTAR ABDUL GAFFAR
...
Advocate for the Petitioner : Mr. Z. H. Farooqui,
and Mr. A.N. Siddiqui
Advocate for Respondent : Mr. N. S. Muthiyan
...
CORAM : Y. G. KHOBRAGADE, J.
DATE : 26.11.2024
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of both
the sides, the Petition is heard finally.
2. Heard Mr. Z. H. Farooqui, the learned counsel for the Petitioner
and Mr. N. S. Muthiyan, the learned counsel for the Respondent.
3. Having regard to the submissions canvassed on behalf of both
sides, I have gone through the record.
4. In the present Petition, under Articles 226 and 227 read with
Section 482 of the Code of Criminal Procedure,1973, the Petitioner
challenges the order dated 11.10.2022 passed by the learned Additional
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Sessions Judge, Aurangabad below Exhibit 9 in Criminal Revision
Application No. 174/2022 thereby confirmed the order dated
03.03.2021 passed by the learned Judicial Magistrate First Class,
Aurangabad in SCC No.4231/2018.
5. The Petitioner is the original accused and the Respondent is the
original complainant in complainant bearing SCC No. 4231/2018
instituted for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881. ( for short N. I. Act).
6. The Respondent/complainant filed a complaint under Section
138 of N.I. Act alleging that the Petitioner / accused No. 1 was in need
of money for his business and time to time he has provided hand loan
to the accused. The details of payment is described in paragraph No.1
of the complaint. For repayment of said hand loan, accused No.1 issued
a cheque bearing No. 000021 for an amount of Rs. 50,000/- and
another cheque bearing No. 000019 for an amount of Rs. 4,80,000/-
both drawn on HDFC Bank. On 31.10.2016, the present Petitioner /
accused No.1 intimated on phone call that because of his illness he
suffered loss in his business and an amount of Rs. 5,30,000/- would be
paid in two months. After expiry of said period of two months from
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31.10.2016, the Respondent / complainant had approached accused
No.1, but he was not in a position to pay the same. But accused No. 1
assured about making the payment once the plot is sold. Accordingly,
on 19.12.2017, the complainant received information from the accused
No.1 about selling of plot. Thereafter said two cheques were taken back
by accused No.1 and fresh two cheques for an amount of Rs. 2,40,000/-
each drawn on Punjab National Bank, Aurangpura Branch, Aurangabad
were issued in favour of the complainant. Out of which, one cheque
was bearer cheque and same was encashed. However, another cheque
which was issued on account payee bearing No. 168775 was presented
for encashment on 20.03.2018, but said cheque was dishonoured for
reason ‘INSTP STALE’ and return memo dtd. 20.03.2018 was issued by
HDFC Bank. Accordingly on 10.04.2018, the Respondent / complainant
issued mandatory notice which was served upon the Petitioner /
accused on 16.04.2018. However, the present Petitioner / accused did
not comply with the said notice. No doubt, on 18.06.2018, learned
Magistrate passed an order below Exhibit 1 and placed the matter for
verification. However, again on the same day, the second order came to
be passed directing the complainant to argue the matter on the
maintainability of complaint. On 26.07.2018, the learned Judicial
Magistrate passed an order below Exhibit 6 and directed an inquiry
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under Section 202 of the Code of Criminal Procedure on the ground
that as per the return memo, the instrument was returned on account of
Instrument Stale. No doubt, Shri Jaideep Dattatraya Bankar, Branch
Manager of HDFC Bank examined at Exhibit 12, has deposed that the
instrument in question was referred for clearance to the concerned
bank and the cheque return memo was received from Punjab National
Bank. Therefore, the authorized person of said bank would say about
the instrument, whether it is stale or not. Thereafter, on 03.03.2021,
the learned Judicial Magistrate has passed an order holding that the
cheque bearing No. 168775 was issued by Respondent No. 2 for
payment of loan obtained by accused No.1. The signature of accused
No. 2 appearing on the said cheque. Therefore, only the drawer of the
cheque would be prosecuted. The learned Magistrate further observed
that on perusal of the complaint, document as well as the affidavit filed
by the complainant, it shows that all the essential ingredients of offence
punishable under Section 138 of the N.I. Act, prima facie made out
against accused No. 2. Therefore, issue process was ordered against the
accused considering the guidelines framed by the Hon’ble Supreme
Court in the case of Indian Bank Association and others Vs. Union of
India and others, AIR 2014 Supreme Court 2528. Needless to say that
the Petitioner / accused No.2 had approached before the Revisional
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Court under Section 397 of Cr.P.C. and had challenged the order of
issuance of process. However, on 11.10.2022, the learned Sessions
Judge passed the impugned order and dismissed the revision,
considering the ratio laid down in case of Indian Bank Association and
others vs. Union of India (cited supra).
7. The learned counsel appearing for the Petitioner canvassed that
on 18.06.2018, initially, the learned Magistrate passed the order below
Exhibit 1 and put the matter for verification, but on the same day again
the complainant was called upon to argue the matter on ground of
maintainability of the complaint. Thereafter, the inquiry was conducted
under Section 202 of the Cr.P.C. by examining the witness Branch
Manager of HDFC Bank. However, from the evidence of the said
witness it does not appear that the instrument was stale or not and the
complainant has not examined the Branch Manager of Punjab National
Bank in which the cheque was drawn. So also, while passing the order
dated 03.03.2021, the learned trial Court failed to appreciate that the
complainant has not made out the prima facie case and sufficient
grounds for issuance of process. Unless the learned Magistrate satisfied
himself about existence of sufficient ground to proceed with the
complaint, the process could not have been issued. Therefore, the
order of issuance of process is itself illegal and bad in law. However, the
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learned revisional Court failed to consider the same, hence, prayed for
quash and set aside the impugned orders.
8. In support of his submissions, the learned counsel appearing for
the Petitioner placed reliance on the case of Mehmood Ul Rehman Vs.
Khazir Mohammad Tunda and others (2015) 12 SCC 420, wherein the
Hon’ble Supreme Court has observed in paragraph Nos. 20 to 23 as
under :
20. The extensive reference to the case law would clearly show
that cognizance of an offence on complaint is taken for the
purpose of issuing process to the accused. Since it is a process of
taking judicial notice of certain facts which constitute an
offence, there has to be application of mind as to whether the
allegations in the complaint, when considered along with the
statements recorded or the inquiry conducted thereon, would
constitute violation of law so as to call a person to appear
before the criminal court. It is not a mechanical process or
matter of course. As held by this Court in Pepsi Foods Limited V.
Judicial Magistrate, (1998)5 SCC 749 : 1998 SCC (Cri)1400, to
set in motion the process of criminal law against a person is a
serious matter.
21. Under Section 190(1)(b) of CrPC, the Magistrate has the
advantage of a police report and under Section 190(1)(c) of
CrPC, he has the information or knowledge of commission of an
offence. But under Section 190(1)(a) CrPC, he has only a
complaint before him. The Code hence specifies that “a
complaint of facts which constitute such offence”. Therefore, if
..7.. 924-crwp-1669-22the complaint, on the face of it, does not disclose the
commission of any offence, the Magistrate shall not take
cognizance under Section 190(1)(a) CrPC. The complaint is
simply to be rejected.
22. The steps taken by the Magistrate under Section 190(1) (a)
CrPC followed by Section 204 CrPC should reflect that the
Magistrate has applied his mind to the facts and the statements
and he is satisfied that there is ground for proceeding further in
the matter by asking the person against whom the violation of
law is alleged, to appear before the court. The satisfaction on
the ground for proceeding would mean that the facts alleged in
the complaint would constitute an offence, and when
considered along with the statements recorded, would, prima
facie, make the accused answerable before the court. No doubt,
no formal order or a speaking order is required to be passed at
that stage. The Code of Criminal Procedure requires speaking
order to be passed under Section 203 CrPC when the complaint
is dismissed and that too the reasons need to be stated only
briefly. In other words, the Magistrate is not to act as a post
office in taking cognizance of each and every complaint filed
before him and issue process as a matter of course. There must
be sufficient indication in the order passed by the Magistrate
that he is satisfied that the allegations in the complaint
constitute an offence and when considered along with the
statements recorded and the result of inquiry or report of
investigation under Section 202 CrPC, if any, the accused is
answerable before the criminal court, there is ground for
proceeding against the accused under Section 204 CrPC, by
issuing process for appearance. The application of mind is best
demonstrated by disclosure of mind on the satisfaction. If there
..8.. 924-crwp-1669-22is no such indication in a case where the Magistrate proceeds
under Sections 190/204 CrPC, the High Court under Section
482 CrPC is bound to invoke its inherent power in order to
prevent abuse of the power of the criminal court. To be called to
appear before criminal court as an accused is serious matter
affecting one’s dignity, self respect and image in society. Hence,
the process of criminal court shall not be made a weapon of
harassment.
23. Having gone through the order passed by the Magistrate, we
are satisfied that there is no indication on the application of
mind by the learned Magistrate in taking cognizance and
issuing process to the appellants. The contention that the
application of mind has to be inferred cannot be appreciated.
The further contention that without application of mind, the
process will not be issued cannot also be appreciated. Though
no formal or speaking or reasoned orders are required at the
stage of Section 190/204 CrPC, there must be sufficient
indication on the application of mind by the Magistrate to the
facts constituting commission of an offence and the statements
recorded under Section 200 CrPC so as to proceed against the
offender. No doubt, the High Court is right in holding that the
veracity of the allegations is a question of evidence. The
question is not about veracity of the allegations; but whether
the respondents are answerable at all before the criminal court.
There is no indication in that regard in the order passed by the
learned Magistrate.”
9. He further relied on the case of Amresh Kumar Dhiraj and Others
Versus State of Jharkhand and another, 2019 SCC online Jhar 2775 ,
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wherein it has been held as under,
“25. The order taking cognizance under Section 190 Cr.P.C. and
order issuing process under Section 204 Cr.P.C., can very well a
composite order but as observed, the application of mind would
be different in both cases. This application of mind must be
reflected in the order itself. The order should not be
mechanical. Magistrate has to mention at least that there are
sufficient materials to proceed against the persons and what
are the prima-facie materials to proceed against them. He need
not pass a detail judgment evaluating the materials, which are
before him. The detail reasons as to why he is taking
cognizance or issuing process are not to be mentioned but at
least what are the bare minimum prima-facie materials against
the accused-petitioners should be mentioned in the order
issuing summons and prima facie what offence is alleged, in the
order taking cognizance.
26. Applying the aforesaid principle, while going through this
impugned order, I find that though the Magistrate has mention
that there are statements of the witnesses, but what are the
prima-facie materials to proceed against these petitioners and
others have not been whispered. In a most mechanical manner,
in one line, this impugned order has been passed summoning
the accused. The Hon’ble Supreme Court in the case of “S.M.S.
Pharmaceuticals Ltd.” and “Ramdev Food Products Private
Limited” (Supra) has held that summoning an accused is a very
serious matter and has got far reaching implications on the
person who has been summoned.
10. Per contra, the learned counsel appearing for the Respondent
supported the findings recorded by both the Courts below and submits
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that while passing the order dated 03.03.2021, the learned Judicial
Magistrate First Class considered the transactions between the
Petitioner / accused and the Respondent / complainant as well as
issuance of the instrument in question for repayment of hand loan. The
learned trial Court also considered that the cheque signed by the
accused No. 2, therefore, only drawer of the cheque can be prosecuted
and declined to issue process as against the accused No.1 who is the
son of accused No. 2 and said fact was considered by the learned
revisional Court. Therefore, the concurrent findings recorded by both
the Courts below need no interference by this Court. Therefore, it
prima facie shows that the learned trial Court complied with the
provisions of Section 204 and issued process as against the present
Petitioner and no interference is called out at the hands of this Court.
Hence prayed to dismiss the Petition.
11. Needless to say that, the Respondent /complainant specifically
made averments in his complaint about issuance of mandatory notice
on 10.04.2018 and served upon the present Petitioner / accused on
16.04.2018. However, the Petitioner / accused did not comply with the
said notice. As per the provisions of Section 138 of the N.I. Act, the
mandatory notice is required to be issued with an intention to give a
proper and sufficient opportunity to the drawee of the cheque.
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However, in the case in hand, after going through the impugned
judgment, it appears that though the present Petitioner / accused
served with the mandatory notice, but he never replied the said notice
and not raised any specific defence. The issue, whether the instrument
in question was stale cannot be decided at this juncture in absence of
substantial evidence.
12. It shows that the learned revisional Court considered the case of
the Indian Bank Association and others Vs. Union of India and others,
AIR 14 SC 2528 and the case of Dr. Abdul Gaffar Quadri s/o Abdul
Razzak Vs. State of Maharashtra and another in Criminal Application
No. 2883 of 2013 and 2884 of 2013 and held that the trial Court
issued the process after compliance of the mandatory provisions of law
contemplated under Section 202 as well as 204 of Cr.P.C. and dismissed
the revision which does not appear to be illegal and bad in law and no
substantial grounds are set out to interfere with the said matter.
13. Hence, the present Petition is dismissed.
14. Rule is discharged.
(Y. G. KHOBRAGADE, J.)
shp