RAMESHWAR LAL Vs. SUBHASH CHANDRA

JUDGEMENT

(1.) This is a petition under Sec. 482 of the Code of Criminal Procedure for setting aside the order dated 7.6.2003 passed by Addl. District & Sessions Judge, Annopgarh in Criminal Revision No. 136/02, Rameshwarlal Vs. Subhash Chandra , by which the order of taking ognizance by Additional Judicial Magistrate against the petitioner by order Dated 11.10.2001 under Section 138 of the Negotiable Instruments Act, 1881 has been affirmed.

(2.) Succinctly stated, the facts are that respondent filed a complaint in the Court of Judicial Magistrate, First Class, Anoopgarh stating that he is proprietor of M/s. "Biharilal Sevasingh Grain Merchant & Commission Agent and had dealings with petitioner Rameshwarlal, who is the proprietor of M/s. Ramdev Trading Company and purchased from him time to time various commodities. In the complaint it was stated that Rameshwarlal came to the shop of Subhash Chandra on 18.8.1993 and for the goods sold to M/s. Ramdev Trading Company gave a Cheque bearing No. CC 525008 drawn on State Bank of Bikaner & Jaipur, Anoopgarh Branch for a sum of Rs. 1,40,000.00 which on presentation was dishonoured on account of insufficient balance. Thereafter, it is said that a registered notice was sent to the petitioner through post as well as through lawyer on 26.8.1993 but the same was refused by him. On demand also, the due payment was not made by the petitioner and ultimately the respondent filed the complaint in Court for offence under Sec. 420 and 138 of the Negotiable Instruments Act and the police filed challan against petitioner on 27.11.1993. The Court took cognizance on the very same day on 27.11.1993. Against that order of taking cognizance, the petitioner filed a revision, which was set aside by the learned Addl. District & Sessions Judge, Raisinghnagar by order dated 26.8.1996 and the case was remitted back to the Judicial Magistrate, Anoopgarh with the direction to pass an order after giving notice and proper opportunity of hearing to the petitioner. Thereafter, the case file was received in the Court of Judicial Magistrate on 13.5.1997, notice was issued on 13.5.1997 and the parties got their witnesses examined. At last, on 11.10.2001 the learned Magistrate took cognizance against petitioner Rameshwarlal on 3.1.2002 under Sec. 138 of the Negotiable Instruments Act, 1881.

(3.) Feeling aggrieved, the petitioner filed a revision petition against said order dated 3.1.2002 taking cognizance against him, which has been decided by the learned Addl. District & Sessions Judge, Anoopgarh vide order dated 7.6.2003 as aforesaid. The learned Court below while dismissing the revision of the petitioner has referred to various decisions of Honourable Apex Court as well as High Courts and stated that law is settled that cognizance is not taken into consideration from the date of issuance of the process but after filing of the complaint in the Court when the magistrate proceeds in the matter from that date the cognizance for the offence in the matter is taken into consideration and in the case in hand as the learned Magistrate had passed order on 27.11.1993, thereafter on 13.5.1997 took cognizance and on 28.11.1997 opportunity was allowed for evidence to the parties, the order passed on 11.10.2001 cannot be treated as an order of taking cognizance i but the said order is merely an order of issuing process.