ROMESH CHANDER SHARMA Vs. KHUSHAL BALI

JUDGEMENT

(1.) Through the medium of instant petition, petitioner seeks quashing of the order dated 07th April, 2008, passed by the learned Sub-Judge (Special Railway Magistrate), Jammu in the Complaint titled, "Khushal Bali Vs. Romesh Chander Sharma", filed by the respondent under Section 138 of the Negotiable Instruments Act.

(2.) The facts in nutshell are that the Cheque No.672434 dated 26th July, 2007 for Rs. 3.00 lacs has been obtained by the respondent from the petitioner by force, coercion and by undue influence in connivance of the Police of Police Station, Gandhi Nagar, Jammu. Aggrieved of the illegal acts of the respondents and that of the police of Police Station, Gandhi Nagar, Jammu, the petitioner has preferred a writ petition bearing OWP No.512/2007 before this Court and the same is pending. The cheque hereinbefore mentioned is under challenge and this Court has been prayed to direct the police concerned to produce the same in this Hon'ble Court. The respondent, without disclosing the fact of the pendency of the writ petition in respect of the cheques he obtained by force from the petitioner with the aid of the police officers, has filed a Complaint against the petitioner under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act") without complying with the provisions of the said Act before the Court of learned Special Railway Magistrate, Jammu, wherein the respondent has sought for the directions against the petitioner for payment of Rs. 3.00 lacs in respect of a cheque bearing No. 672434 dated 26th July, 2007, which allegedly presented by him in bank on 23rd January, 2008 for encashment and the same was dishonored on the same day by the bank of the petitioner; demand notice dated 22nd February, 2008 received back by the Advocate of the respondent with the endorsement of the postman that the addressee is not traceable at the given address. Notice of the complaint sent by the learned Special Railway Magistrate, Jammu through police received back with the endorsement of the police officer that despite search of the petitioner, his house could not be traced.

(3.) It is stated in the petition that on 04th June, 2008, petitioner was contacted on his mobile phone by the police of Police Station, Rehari and was asked to appear in the police station. As such, on the directions of the police officer, he went to the police station where he was forced to accept the notice of Complaint. This is how the petitioner was served with the notice of the Complaint and as such, he came to know about the filing of the Complaint by the respondent against him. On 05th June, 2008, the petitioner appeared before the Court below and filed an application for the certified copy of the order of summons issued against him by the Court below. It is also stated that the Court of learned Special Railway Magistrate, Jammu while issuing process in the Complaint has committed an illegality, that has resulted into miscarriage of justice especially when the respondent by his act of perversion, did not disclose the material facts of the case inasmuch as the pendency of the writ petition, as has been referred hereto above. The learned Trial Court has also committed haste in issuing process especially when it did not go through the endorsement of the postman, who says that the addressee is not available and for this very reason, the demand notice could not be served on the petitioner. The address on the demand notice is incorrect, which is not the address of the petitioner, who is not residing at the given address and that is why the notice of demand was not served on him. Therefore, in absence of notice being a statutory requirement, the cognizance in the Complaint could have not been taken, as such, the issuance of process in the given circumstances is bad and attracts quashment of the same.