Mohd. Ibrahim Kuraishi v. State

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ? AJIT BHARIHOKE, J.(ORAL)

1. By this order, I propose to dispose of above referred petitions under Section 482 of the Code of Criminal Procedure between the same parties involving similar question of law and facts. 2011:DHC:4143

2. Briefly stated, facts relevant for the disposal of these petitions are that the respondent filed two complaints under Section 138 of the Negotiable Instruments Act (for short `N.I.Act’) against the petitioner, claiming that the petitioner had borrowed a sum of ` 2.50 lakhs from the respondent No.2 for purchasing the land. He issued two cheques, one being cheque No.302131 dated 30.01.2008 for `2,10,500/- and other being cheque No. 302135 dated 14.06.2008 for `23,360/- both drawn on State Bank of India, Jwalaheri for repayment of aforesaid loan. The said cheques, on presentation, were returned back dishonoured with the remarks “insufficiency of funds”. This led to issue of notice under Section 138 N.I. Act to the petitioner, calling upon him to pay the amounts of respective cheques within 15 days of receipt of respective demand notices. The petitioner failed to make the payment of the amount of either of those two cheques despite of notice of demand. This led to the filing of two separate complaints in respect of those cheques.

3. The petitioner, vide these petitions is seeking quashing of both the complaints on the ground that the averments made in the complaints do not, prima facie, make out the commission of offence under Section 138 N.I. Act.

4. Learned counsel for the petitioner has taken me through the respective complaints which are similarly worded but for the details of the cheques and dates of presentation of respective cheques as also the dates of return memos and the dates of the respective demand notices. It is submitted that on reading of the complaints, it would be seen that there is no specific allegation in the complaints that the demand notices were served on the petitioner or that the petitioner has failed to make payment of the demanded amount within 15 days of service of demand notices. Learned counsel contended that from the above, it is apparent that essential ingredient of offence under Section 138 N.I. Act is lacking in the averment made in the complaints. Accordingly, the complaints are liable to be quashed as, prima facie, commission of offence is not disclosed.

5. Learned counsel for the respondent No.2, on the contrary, has refuted the arguments and submitted that all necessary ingredients of offence under Section 138 N.I.Act are disclosed in the respective complaints. Thus, he has urged for dismissal of the petitions.

6. From the submissions made on behalf of the petitioner, it is clear that only question for determination in this case is whether or not, the respective complaints filed by the respondent No.2 under Section 138 N.I. Act contain the allegations regarding the service of notices of demand under Section 138 N.I. Act on the petitioner and that the petitioner failed to comply with the demand notices within the requisite period. In this regard, Para 10 of the respective complaints filed under Section 138 N.I. Act which have been worded similarly is relevant. Para 10 of the complaints in question is reproduced thus:

7. On reading of Para 10 as reproduced above, it would be seen that though the allegations in this paragraph are not properly worded but it clearly conveys that after the dishonour of the cheques, legal notice dated 13.8.2008 was sent to the petitioner. It is also averred in the aforesaid paragraph that the cause of action still continues, which implies that the legal demand notice has not been complied with. Therefore, it cannot be said that the averments in the complaints do not disclose, prima facie, the commission of offence under Section 138 N.I.Act. In my considered view, the complaints are to be interpreted liberally to see whether or not said complaints, prima facie, disclose the commission of offence under Section 138 N.I.Act and it cannot be rejected at the outset without any enquiry, merely for the reason that the complaints are not properly worded. The complainant cannot be made to suffer due to lack of knowledge of language on the part of his counsel.

8. In view of the discussion above, I do not find any merit in the above petitions seeking quashing of the complaints.

9. Petitions are accordingly dismissed.

JUDGE AUGUST 12, 2011 ks