GIAN SINGH Vs. OSWAL STEELS CHANDIGARH

JUDGEMENT

(1.) This petition under Section 482, Cr.P.C. has been filed by the accused-petitioners seeking quashment of the criminal complaint dated 20-8-1990 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as the Act) filed by the complainant respondent and also seeking quashment of order dated 10-9-1991 passed by the Judicial Magistrate, whereby the accused were ordered to be summoned to face trial for the offence under Section 138 of the Act and the order dated 13-10-1997 passed by the Judicial Magistrate holding that the complaint in respect of cheque for Rs. 35,189/- was well within time and directing that notice shall be issued in the criminal complaint only in respect of the said cheque and also challenging the order dated 21-9-99 passed by the Additional Sessions Judge, whereby the Revision Petition filed by the accused-petitioners against the order dated 13-10-1997 was dismissed.

(2.) The facts in brief are that on 27-8-1990, complainant-respondent M/s. Oswal Steels had filed a criminal complaint under Section 138 of the Act read with Section 420, IPC against the accused-petitioners with the allegations that accused-petitioner No. 2 was a partnership concern and that accused No. 1 was its partner and was looking after the day to day affairs and business of accused No. 2 being its partner and as such both the accused were liable for all the acts of accused No. 2 firm. It was alleged that the accused had been making purchases of steel boards from the complainant and that accused No. 1 on behalf of accused No. 2 purchased steel boards vide bills dated 19-7-1989 and 16-10-1989 and issued three cheques against the price of the steel boards, vide cheques dated 30-6-1990 amounting to Rs. 35,189.75 p. cheque dated 6-6-1990 amounting to Rs. 30,000/- and cheque dated 30-5-1990 for Rs. 26,727/-, all drawn on the State Bank of India, Miller Ganj Branch, Ludhiana and in favour of the complainant. It was alleged that on the assurance given by the accused that the cheques would be honoured, the compla'inant had accepted those cheques. It was alleged that those cheques were presented for payment by the complainant in the Syndicate Bank but all the said cheques were returned by the Bank as unpaid along with memo with the remarks "refer to drawer". It was alleged that on receipt of the intimation from the Bank regarding the dishonour of the cheques, the complainant sent notices dated 26-6-1990 and 9-7-1990 calling upon the accused to make the payment of the dishonoured cheques but the accused failed to make the payment. Photostat copies of the dishonoured cheques, memos received from the Bank, notices and postal receipts were attached with the complaint. It was alleged that the accused had the dishonest intention and in this manner the accused had cheated the complainant for Rs. 91,916.75. It was accordingly prayed that the accused be sumoned, tried and punished for the offence under Section 138 of the Act read with Section 420, IPC.

(3.) After recording the preliminary evidence, the learned Magistrate ordered the summoning of the accused for the offence under S. 138 of the Act, vide order dated 10-9-1991. Thereafter, application dated 2-8-1994 was moved on behalf of the accused for recalling the aforesaid order dated 10-9-1991. This application was opposed by the complainant by filing reply dated 10-8-1994. Vide order dated 27-8-1994, the learned Magistrate dismissed the said application. Aggrieved against the same, the accused filed revision-petition before the Sessions Court. The learned Sessions Court remanded the case to the trial Magistrate for considering the question regarding limitation. Thereupon, the learned Magistrate vide order dated 13-10-1997 found that the criminal complaint with regard to cheque for Rs. 35,189/- was well within limitation and accordingly it was directed that the notice in this complaint shall be served only in respect of the said cheque. Aggrieved against the same, the accused filed revision-petition before the Sessions Court. Vide order dated 21-9-1999 the Additional Sessions Judge, dismissed the revision-petition. Aggrieved against the same, the accused filed the present petition under S. 482, Cr. P.C. in this Court seeking quashment of the criminal complaint and the aforesaid orders passed by the Courts below. The lower Court record was summoned.