ARUN KUMAR Vs. KISHAN LAL

JUDGEMENT

(1.) This criminal misc. petition has been filed by the petitioners against the order dated January 22, 2003 passed by the Ad-ditional Chief Judicial Magistrate No. 3, Jaipur City in Criminal Case No. 263 of 2002 whereby the application filed by the petitioners under Section 204, Cr.P.C. was rejected.

(2.) The facts of the case are that the complainant-respondent filed a com-plaint on 8.4.2002 against the petitioners regarding cheque No. 400937 dated 18.2.2002. The complainant stated that the accused had committed offence under Section 138 of Negotiable Instruments Act as the cheque was dishon-oured by the Bank. The Judicial Magistrate vide order dated 10.6.2002 took cognizance of offence after recording the statements of the witness under Sec-tions 200 and 202, Cr,P.C. After summoning, the petitioners moved an appli-cation before the Magistrate under Section 204, Cr.P.C. and submitted that the complainant has not brought the correct facts on record. On 18.2.2002 the cheque was issued for Rs. 1,487/-. The Sessions Judge in some other matter passed an order for attachment of Bank Account of the BSNL and when the cheque reached to the Bank for collection, the Bank returned the said cheque with the remark "Refer to Drawer". The BSNL sent a reply of the notice dated 20.3.2002 and it was requested to the complainant that he may redeposit the cheque for collection. The said reply was received by the complainant, but the complainant had concealed the said reply and filed the complaint. It has been stated in the application that there was no intention of the petitioners as alleged by the complainant. In the reply to notice father's name of the complainant was mentioned instead of the name of the complainant which do not constitute any offence. The petitioners submitted that even otherwise in the consumer case the complainant has received the amount

(3.) It is an admitted fact that the complainant filed a complaint under the Negotiable Instruments Act against the officers of the Bharat Sanchar Nigam Lim-ited in their personal capacity. The officers of the Bharat Sanchar Nigam Lim-ited signed the cheque issued to the complainant not in their personal capacity but as having charge of the office of the Bharat Sanchar Nigam Limited. Even if on account of any mistake the cheque of petty amount of Rs. 1,487/- could not be encashed, for that in my opinion at least the officers of the Bharat Sanchar Nigam Ltd, cannot be held liable for not making the payment of cheque to the complainant. The trial Court has also not taken into consideration the applica-tion filed by the officers of the Bharat Sanchar Nigam Limited, who specifically stated in the application that the complainant was again sent registered notice on 20.3.2002 and the complainant was again asked to present the cheque before the Bank. This notice was received by the complainant but he concealed this fact. The petitioners specifically stated in the application that the cheque was not dishonoured on account of insufficient fund in the account of Bharat Sanchar Nigam Limited. The learned Counsel for the petitioners submitted that most of the officers of the BSNL have already retired and the payment of the cheque amount has already been received by the complainant. The only mis-take committed on behalf of the petitioners is that they have sent the reply to the notice in the name of the father of the complainant. There was no inten-tion of the petitioners not to make payment of the amount lying in deposit with the BSNL after surrendering telephone. The trial Court has not considered all these aspects into consideration and in my view the order dated 22.1 .2003 deserves to be set aside and the matter is remanded back to the trial Court to take into consideration all these facts on record and again decide the applica-tion filed by the petitioners under Section 204, Cr.P.C. afresh. The complain-ant filed the complaint as if the petitioners wanted to grab the amount of Rs. 1,487/- for their personal use. It is an admitted fact that the reply of the notice was sent in the name of Gyarsilal Agrawal, which is the name of father of the complainant at his residential address i.e. D 58, Anaj Mandi Chandpole, Jaipur on 30.3.2002 issued under the signatures of Accounts Officer Cash (West) BSNL- C/o P.G.M.T.D., Jaipur. Al! these facts are in the knowledge of the com-plainant but he concealed these facts before filing the complaint.