SHASHI SHRIVASTAVA Vs. JAGDISHSINGH KUSHWAH

JUDGEMENT

(1.) THE facts, in brief, are that one complaint has been filed by the respondent against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act')and under Section 420of IPC. Cognizance under Section 138 of the Act has only been taken against the petitioner vide order dated 25th February, 2002. On perusal of the complaint, it appears that the same has been filed by his advocate putting his initials only and without the signatures of the respondents / complainant. One application dated 17th October, 2003 has been filed on behalf of the petitioner under Section 245 of Cr. PC for quashing the complaint on the ground that the same has been filed without the signatures of the complainant. Vide reply dated 25th February, 2004, the respondent/complainant has mentioned his willingness to put his signatures on the complaint. Vide order dated 22nd August, 2005, the JMFC, Gwalior has observed that he has already taken cognizance, hence, he cannot go behind his own order. It is also observed that the objection will be considered at the time of final hearing. Feeling aggrieved, Criminal Revision No. 224/05 was preferred by the petitioner which has been dismissed vide impugned order dated 14-11-05 by the Additional, sessions Judge, Gwalior with the observation that the learned Magistrate has not passed a final order on the dispute. However, the learned Judge has referred a judgment of Bombay High Court in Vijay Vs. Ramchandra, 2003 (1) CRJ 144.

(2.) THE only dispute, which requires to be decided by this Court is, that in these circumstance what will be the fate of such complaint which has been filed without signatures of the complainant and thereafter in Court, he offered to put his signatures and mentioned his willingness to cure the defect.

(3.) THE relevant provision of Section 142 (a) of the Act goes as under:-"142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- (a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) *** *** *** *** *** (c) *** *** *** *** ***" (Emphasis Supplied)