MANZOOR AHMAD BURZA Vs. GULZAR ENTERPRISES

JUDGEMENT

(1.) These two petitions raise akin and analogous issues and have, therefore, been clubbed together for determination and decision. At the threshold, the facts, as these emerge from the study of both the petitions, require to be delineated.

(2.) This petition, filed under Section 561-A of the Code of Criminal Procedure, is directed against the order dated 16th of June, 2016, of the Court of the learned City Munsiff, Srinagar, passed in a criminal complaint bearing File No. 382/A titled 'Gulzar Enterprises v. Manzoor Ahmad Burza'.

(3.) The case of the petitioner is that by an order dated 16th of June, 2016, the Court of learned City Munsiff, Srinagar, has taken cognizance of a time barred complaint for an offence punishable under section 138 of the Negotiable Instruments Act, (hereinafter referred to as "the Act" read with Section 420 of the RPC and, accordingly, issued process against the petitioner. The petitioner is aggrieved of the aforesaid order dated 16th of June, 2016 and the proceedings initiated thereunder on the grounds, inter alia, that the learned trial Court has conducted any enquiry as required under section 200 and 202 Cr. P.C., 1973 before taking cognizance of a time barred complaint. The attestation of the Affidavit is in accordance with the law and, as such, liable to be discarded. There is nothing on record to spell out the cause of delay nor has the statement of the learned counsel been recorded to inspire confidence for accepting the explanation offered to condone the delay. The order impugned has been passed in a most perfunctory manner, and from the contours of the order, it becomes manifest that delay has been condoned after taking cognizance of the complaint. The contents of the complaint and the statement of complainant have conjointly been adopted for taking cognizance without holding any separate enquiry before condoning delay. The compliant has been filed through counsel and no personal knowledge or awareness about the facts is narrated in the memo of complaint. The trial Court has failed to record any satisfaction about the competence of the counsel to file the complaint on behalf of complainant. The complaint is filed by the complainant purporting to be the payee nor any power of attorney authorising the counsel to frame and present the complaint has been relied upon for taking cognizance of complaint. The cheques are shown to be issued towards the liquidation of debt or liability, but shown as having arisen as a result of an un-matured deal regarding the sale of land. There is no determined liability in furtherance of which the cheque is shown to have be issued by the petitioner. Since the matter related to commercial transaction, as such, it was imperative to conduct an enquiry before issuing process against the petitioner. A severe miscarriage of justice has been caused by issuing process against the petitioner in absence of prior enquiry. The offence under Section 420 RPC cannot be tried together with Section 138 Negotiable Instruments Act. In this regard, it is stated that the contractual relationship is admitted and it is only the cheques which are alleged to be dishonored. Since no predisposition is shown to have been existing towards the development of contractual relationship before the breach occasioned in the performance of obligations, therefore, as stated, the learned trial Court has erred in taking cognizance for the offence under Section 420 RPC, where dishonest intention is the motivation for inducement. The alleged dishonor of each cheque drawn on different dates constitutes separate offence and by operation of Section 234 Cr. P.C., 1973 only three offences within a period of one year can be tried together. The instant case involves four number of cheques of different dates. The bar created under Section 234 of the Code, renders, the proceedings liable to be quashed. The respondent has suppressed the material facts and has tried to mobilize prosecution to enforce an illusory liability. It is stated that it was contemplated to purchase land at Jammu belonging to one Mr. Sunil Kumar Thusoo and a substantial amount was credited into his account. However, the vendor committed a breach in respect of which enquiry is pending before the Crime Branch/ Vigilance Organization and the respondent has also participated in the enquiry. Incidentally, the deal to purchase the land at Khanmoh for the brother of petitioner also could materialise and under compelling circumstance the seven post-dated cheques were procured from the petitioner for being drawn in the name of M/s Gulzar Enterprises (Respondent herein). The petitioner has received any amount from the respondent, but money has been remitted to the vendor instead of petitioner. There is no settled amount which the petitioner has owned to liquidate, but under duress, the cheques were obtained by the respondent. Since the cheques have been drawn to liquidate a lawfully recoverable debt or liability, as such, the complaint is maintainable.