PREMKUMAR NETRAM MITTAL Vs. PUSHPA NATHALAL SANGANI

JUDGEMENT

(1.) IN this petition very serious and scandalous allegations have been made against the Magistrate. It is vehemently argued by Mr. Jha that the learned Magistrate was not justified in issuing non-bailable warrants against the petitioner. He also vehemently submits that the learned Magistrate has stated in the open Court that "The persons whose cheques dishonor are worst than the murders. If a murder is committed only one family suffers but because of these persons (he means to say those persons whose cheque is alleged to have dishonored) the entire society suffers." The counsel submits that the Magistrate is also in the habit of issuing non-bailable warrants without any reason or justification. He submits that the learned Magistrate brow beats the lawyers. He submits that the advocates are afraid of making submissions before the said Magistrate. He submits that in the present case, the cheques on the basis of which the complaint has been filed are, in fact, forgeries. He submits that in fact the petitioner had no bank account against which the said cheques were sought to be cleared. Since the petitioner had not opened any bank account, the cheques were bound to be dishonored. He submits that the complainantts have played a fraud on the petitioner. He also submits that he never went to the particular branch where the account is opened either with the complainant or with anybody. Yet he is supposed to have been introduced by the complainant to the branch for the purpose of opening the account. He submits that when the warrants were issued on 27th February, 1998, the petitioner, in fact, was not in Bombay. He claims to have gone to Rajasthan to see his seriously ailing mother-in-law. It is submitted that this fact was brought to the notice of the learned Magistrate and even then non-bailable warrants are issued. These very submissions were made on 3rd March, 1998.

(2.) RELYING on such strong submissions, this court issued notice in the petition. Ad interim relief was also granted in terms of prayer clause (c). It had appeared to the Court that prima facie the Magistrate is exceeding his jurisdiction. In response to this notice, the complainant has filed an affidavit on 30th March, 1998. Therein the history of the proceedings of this complaint case has been graphically set out. It is stated that the petitioner since February, 1995 was irregular in attending the trial Court. Some times he used to remain present and his advocate would be absent and the case would be adjourned. On other occasions, the advocate would be present, but the petitioner would be absent. Again the case would be adjourned. After about one year i.e. on or about 31st January, 1996, ultimately plea of the petitioner was recorded. The matter was kept on 11th March, 1996 for recording evidence. On 11th March,1996, the advocate for the petitioner was absent. Thereafter on the subsequent adjourned dates, 2nd April, 1996 and 15th April, 1996, the petitioner was absent. On 17th April, 1996, the advocate for the petitioner was absent. Thus, except for recording the plea of the petitioner, no proceedings could continue. On 5th June, 1996, the petitioner appeared in Court along with the advocate. An undertaking in writing was given to the Court to pay a sum of Rs.5,80,000/- by instalments. This undertaking was prepared by the advocate of the petitioner. In fact, the undertaking has been signed by the advocate for the petitioner as well as the petitioner. Inspite of this undertaking having been given, no payment was made on the dates mentioned in the undertaking. The petitioner started remaining absent from the Court on many occasions. The cheques given by the petitioner towards the undertaking were subsequently all dishonored. These cheques were dishonored on 26th September, 1996, 8th January, 1997, 4th March, 1997, 11th March, 1997, 6th May, 1997 and 17th September, 1997. Thereafter the petitioner even made part payments. But he has not made any payment after June, 1997. As noticed above, the last cheques was dishonored on 17th September, 1997. On 1st October, 1997, Chief Justice of this Court issued a circular transferring all matters pertaining to dishonor of cheques to Girgaum Court. All matters under section 138 were placed before one court. The case was transferred and was on Board for hearing on 17th December, 1997. The petitioner was absent. The matter was adjourned to 23rd January, 1998. On that date, the advocate of the petitioner was absent. Thus, the matter was adjourned to 24th January, 1998 for recording of evidence. By now the matter was over three years old. The undertaking was given by the petitioner before the transfer of the case to the present Court. On 24th January, 1998, the petitioner presented an application for being relieved from the undertaking. This undertaking must be noticed, had already been breached. The cheques issued in pursuance of the undertaking had already been dishonored on 26th September, 1996 and the other dates mentioned above. Taking into consideration all these facts, the learned Magistrate rejected the application. It is, however, not apparent from the order because the order simply says rejected, matter shall proceed according to law. Much ado has been made by Mr. Jha by submitting that this is a cryptic, non-speaking order. This Court is, therefore, invited to quash the said order simply on the ground that it is non-speaking.

(3.) I am not at all impressed with any of the submissions made by the counsel for the petitioner. It is clear that this petitioner is indulging in sharp practices. After taking the loan, he issues cheques. Thereafter he submits that the cheques were not issued by him. He claims that the cheques have been forged. He claims that the bank account has been opened fraudulently. He writes letters to the branch where the account is opened, boldly stating that he never opened the account in the said branch. This was to get out of the initial liability of the cheques, which have bounced. When the matter reached the Court, before it was transferred to the present Court, every effort was made to delay the proceedings. It has been noticed above that either the advocate was absent or the petitioner was absent. Inspite of this, submits Mr. Jha that the Magistrate has acted arbitrarily and capriciously. Much reliance has been placed on the statements which are attributed to the learned Magistrate to pursuade this Court to transfer the matter from 40th Court Girgaum to some other Court. I do not find any substance in any of the submissions made by Mr. Jha. In the circumstances which have been narrated above, I am of the considered opinion that the learned Magistrate was left with no opinion but to issue non-bailable warrants, against the petitioner. The other matters which have been brought to the notice of this Court, they are defences which will be decided at the final hearing of the case. They can only be adjudicated upon after the evidence has been produced. Serious allegations have been made of fraud. Naturally, therefore, complainant would be entitled to lead the evidence of the bank as well as of any other officer, pertaining to the opening of the account. Without having that material before the Court, at this stage, the learned Magistrate was absolutely within his jurisdiction to order that the matter shall proceed in accordance with the law. I do not find anything either arbitrary of un-justified in the orders passed by the learned Magistrate in the circumstances of this case. Except for the bald statement made in paragraph 9 of the petition, there is no evidence whatsoever to show that the learned Magistrate had made such comments, in the open court in the present matter. In fact, in the affidavit in reply filed by the complainant, it is categorically stated that the Magistrate has never made any observations or statements in the matter under consideration. It is further stated that the allegations have been made to prejudice the mind of this Honourable Court. In view of the circumstances narrated above, I think the averments made in the affidavit in reply deserve to be accepted. It is also to be noticed that no reply has been filed by the petitioner to the affidavit in reply. In fact, even a request was not made to this Court for adjournment of the matter in order to clarify the facts stated in the affidavit in reply. It was presumed by the petitioner that accepting whatever is stated in the petition, the order would be set aside and the matter will be transferred.