M/s Rikhi Ram and Co. Moga v. Jai Ram Dass Abhishek Sood

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER ........ Respondents Present: Mr.B.S. Bhalla, Advocate for the revision-petitioner. Mr. Akshay Bhan, Advocate for the respondents. **** Sham Sunder, J. This revision-petition has been filed by the petitioner, for setting aside the order dated 11.04.2009, rendered by the Court of Judicial Magistrate Ist Class, Moga, vide which it dismissed the application under Section 319 of the Code of Criminal Procedure filed by complainant/petitioner for summoning Abhishekh Sood son of Vijay Sood, Proprietor of M/s Jai Ram Dass Abhishek Sood, Crl. Revision No. 1040 of 2009 2 Shop No.118, New Grain Market Moga District Moga, as accused.

2. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully.

3. The Counsel for the revision-petitioner, has submitted that the cheque in the discharge of legally enforceable liability was issued by Vijay Sood, signatory of M/s Jai Ram Dass Abhishek Sood, Moga and when the same was presented, it was dis-honoured. He has further submitted that legal notice was given to Vijay Sood and when the amount was not paid, a complaint under Section 138 of the Negotiable Instruments Act, was filed. He has further submitted that lateron, it came to the knowledge of the petitioner that, in fact, Abhishekh Sood was the sole proprietor of the aforesaid concern, and, thus, an application under Section 319 Cr.P.C., was moved for summoning him, as an additional accused, but the same was illegally dismissed by the Court below. He has further submitted that the order impugned, being illegal, is liable to be set aside.

4. On the other hand, the Counsel for the respondent, has submitted that no statutory notice was issued to Abhishek Sood, Proprietor of the aforesaid concern after the cheque was received back dis-honoured, and, as such, he could Crl. Revision No. 1040 of 2009 3 not be summoned in pursuance of the application under Section 319 Cr.P.C., as an additional accused. He has further submitted that the order impugned, being legal and valid, is liable to be upheld.

5. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition is liable to be dismissed, for the reasons to be recorded hereinafter. For constituting the offence, punishable under Section 138 of the Negotiable Instruments Act (amended upto date), the complainant must prove that the cheque was issued by the accused, in the discharge of his legally enforceable liability; that when the same was presented, it was dis-honoured; that after the receipt of dis-honoured memo, a statutory notice, asking the accused to pay the amount of the dis-honoured cheque was issued; and that the amount was not paid within a period of 15 days from the date of receipt of said notice. In the instant case, admittedly, the notice was given to Vijay Kumar Sood, who according to the petitioner, was an authorized signatory of the aforesaid proprietorship concern. Ultimately, the proprietor of the said concern, was found to be Abhishek Sood. No statutory notice was given to him. The trial Court in my considered opinion, was right in coming to the conclusion that since no Crl. Revision No. 1040 of 2009 4 statutory notice, was served upon Abhishek Sood, no complaint under Section 138 of the Negotiable Instruments Act (amended upto date) could be filed against him. Under these circumstances, the application under Section 319 Cr.P.C. for summoning Abhishek Sood as an additional accused, in my considered opinion, was rightly dismissed by the Court below.

6. The Counsel for the revision-petitioner, placed reliance on Playwood House v. Wood Craft Products Ltd. 1993 Civil Court Cases 681 (Kerala) in support of his contention that Abhishekh Sood, could be summoned as an additional accused, in pursuance of the application, under Section 319 Cr.P.C.. The perusal of the facts of the aforesaid case, clearly goes to show that the firm which issued the cheques, was not made an accused, in the complaint. It was, under these circumstances, it was held that the said firm, could be impleaded even after the expiry of one month, from the date of accrual of cause of action, as envisaged by the provisions of the Negotiable Instruments Act, 1881. There is, no dispute, with the proposition of law, laid down in Playwood House's case (supra). In the instant case, Abhishekh Sood was not a partner of the firm. Abhishekh Sood was the sole proprietor of his concern. It was Mr. Abhishekh Sood, who was allegedly liable to pay the amount of dishonoured cheque. Since statutory Crl. Revision No. 1040 of 2009 5 notice had not been issued to him, he could not be summoned, as an additional accused, as the necessary ingredients, required for constituting the offence, punishable under Section 138 of the Negotiable Instruments Act, were not fulfilled and no complaint against him, under the aforesaid provisions of law, could be filed. No help, therefore, can be drawn, by the Counsel for the revision-petitioner, from the aforesaid case. The submission of the Counsel for the revision petitioner, being without merit, must fail, and the same stands rejected.

7. The order impugned, passed by the trial Court, does not suffer from any illegality or infirmity. The trial Court exercised the discretion, vested in it, in a judicious manner. The order impugned, does not call for any interference and is liable to be upheld.

8. For the reasons, recorded above, the revision petition, being devoid of merit, must fail, and the same is dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

9. The Registry shall send copies of the order to the Court concerned immediately. February 02, 2010 dinesh (SHAM SUNDER) JUDGE