RASHID HUSAIN Vs. HAKIM ALI

JUDGEMENT

(1.) BY way of this Criminal Misc. application, the prayer has been made by the applicant Rashid Husain for quashing the entire proceedings of Criminal complaint case No. 1912 of 2009 Hakim Ali Vs. Rashid Husain, pending in court of Additional Chief Judicial Magistrate, Kashipur District Udham Singh Nagar. In the said complaint case, the Magistrate took the cognizance on 20.08.2009 for the offence under section 138 Negotiable Instrument Act. Having heard learned counsel for the parties, it appears that two cheques were issued by Rashid Husain to the complainant Hakim Ali. These cheques were worth of Rs. 70,000/ - and Rs. 72,000/ -, in total Rs. 1,42,000/ - on dated 05.02.2009. When Hakim Ali submitted these cheques through his bank, they were dishonored on account of insufficient fund. So, Hakim Ali issued a notice asking Rashid Husain for the payment of cheques amount within 15 days of the receipt of the notice, as contemplated under the Negotiable Instruments Act, but Rashid Hussain did not make the payment. So complaint was filed within the time limitation, as envisaged under the Act. It has been argued that for default in the payment of each cheque, filing of a single complaint is not in accordance with the law.

(2.) LEARNED counsel for the applicant has drawn attention of the Court towards the language of sections 138 as well as, 142 of the Act wherein the word "Cheque" for each offence has been used by the Legislature. Besides, he has also relied upon the precedent of Gujrat High Court in the case of "Vani Agro Enterprises THRO M. Balaji Vs. State of Gujarat & another" wherein, it was opined that for default of payment towards each cheque, there would be a distinct offence. In that case it was default of four cheques, so the Gujarat High Court was of the view that each default will give rise to distinct offence and these defaults cannot be covered by two complaints.