TAYYEB ALI Vs. ABID ALI SAIFEE

JUDGEMENT

(1.) Heard finally with consent of the parties. This petition has been filed by the petitioners under Section 482 of Cr.P.C. against the order dated 16.03.2016 whereby learned ACJM took cognizance u/s 138 of Negotiable Instruments Act against the applicants-accused.

(2.) Brief facts of the case are that the respondent-complainant had filed a complaint u/s 138 of Negotiable Instruments Act against the petitioners-accused. The petitioners-accused were summoned to appear before the trial Court on 05.07.2016. The complainant filed an application u/s 138 of Negotiable Instruments Act on 04.03.2016. In this complaint, respondent-complaint alleged that he has given a loan of Rs.27,000/- to the petitioners-accused. The petitioners-accused issued a cheque No. 762772 for the amount of Rs. 27,000/- to the complaint-respondent. This cheque was signed by the petitioners-accused. This cheque was presented to Indian Overseas Bank, Jabalpur and the same was dishonored. It is mentioned in the returned memo that account was closed by the petitioners-accused, then, the complainant-respondent gave a notice in the terms of the provision under Section 138 of Negotiable Instruments Act. Notice was served to the petitioners. Despite service of notice, no payment was made then learned trial Magistrate has taken cognizance u/s 138 of Negotiable Instruments Act against the petitioners-accused.

(3.) According the petitioners-accused, the order of cognizance is bad-in-law as the facts of the case. No offence u/s 138 of the Negotiable Instruments Act is made out against them. Date is not mentioned in the complaint which shows that when the respondent-complainant advanced allegedly loan to the petitioners, therefore, in absence of the pleading, the cheque given by the petitioners was not legally enforceable. Thus, cognizance should not be taken. In Notice (Annexure P-8) the alleged address was mentioned as Secretary Dawoodi Bohra Jamat Trust, Kotwali, Jabalpur, not personal names of the petitioners. In this view of the matter, complaint should not have been entertained by the learned Magistrate Court in absence of pre-complaint notice in the personal names of the petitioners. The loan was paid by receipt No. 9 dated 01.08.2011 but date of the cheque is shown as 14.01.2016, therefore, the complaint is primafacie barred by the limitation. It is pertinent to note that the return memo (Annexure P-8) does not recite that the petitioner has closed the account whereas the reason given in Annexure P-7 is "55 Account blocked (situation covered in 21-25"). The applicant No. 2 wrote a letter dated 19.07.2016 to Branch Manager of Indian Overseas Bank Service Branch, Jabalpur explaining him the reason assigned in Annexure P-7 for dishonouring the cheque of the said bank. The reply from the said Bank has been received as Annexure P-11 stating that "in this connection, we advise that the cheque was returned as the account No. 052102000022127 was under debit freeze due to non-operative status of the said account". This is sufficient to know that the said account was not closed at the instance of the petitioners. Annexure P-12 shows that amount of Rs. 27,000/- was deposited on 18.01.2016 then cash balance was available therein Rs. 27,654/- till 25.05.2016. It is also pertinent to note that the concerned Bank never intimated the account holder about the cheque, which was returned unpaid. The respondent has again made a false statement in para 5 of the complaint that he issued a notice to the non-applicants on 02.02.2016. So, the impugned order taking the cognizance against the applicants deserves to be quashed.