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Smart Summary

Factual and Procedural Background

The petition under Section 482 Cr.P.C challenges a complaint dated 30.8.2010 and an order dated 12.5.2011 passed by the Additional Sessions Judge, Bhiwani, which set aside an earlier order dated 5.3.2011 by the Judicial Magistrate Ist Class, Bhiwani. The complainant, Kailash Kumar Sharma, filed a complaint under Sections 138 and 141 of the Negotiable Instruments Act, 1881 against Nishant Aggarwal, alleging that Nishant, Director of M/s Byri Steel Private Limited, issued a post-dated cheque for Rs. 28,62,700/- which was dishonored due to stop payment. The complainant claimed a verbal agreement entitling him to commissions and profits from business brought to the accused’s firms. The cheque was presented twice but returned unpaid. A legal notice was sent demanding payment, which was not complied with, leading to the complaint.

The accused was summoned under Section 138 of the Negotiable Instruments Act and moved an application to stay proceedings, alleging the cheque was missing since January 2006 and that complaints under Sections 379, 411, and 420 IPC had been filed against the complainant. He also contended that the enquiry under Section 202 Cr.P.C was not conducted. The Judicial Magistrate Ist Class accepted the application to dismiss the complaint on the ground of lack of jurisdiction and returned the complaint for presentation before the proper court. The complainant filed a revision which was accepted by the Additional Sessions Judge, who reinstated jurisdiction. Dissatisfied, the accused filed the present petition under Section 482 Cr.P.C.

Legal Issues Presented

  1. Whether the court at Bhiwani had jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act, 1881.
  2. Whether the complaint discloses an offence or amounts to an abuse of process warranting interference under Section 482 Cr.P.C.
  3. Whether the allegations about the cheque being lost or stolen affect the maintainability of the complaint at the jurisdictional court.

Arguments of the Parties

Petitioner (Accused) Arguments

  • The cheque in question was found missing in January 2006 and the bank and police were informed.
  • Fresh information about the missing cheque was given to the bank on 4.4.2008.
  • The notice dated 11.1.2010 demanding payment was sudden and unwarranted.
  • Complaints under Sections 379, 411, and 420 IPC were filed against the complainant.
  • The complaint lacks jurisdiction as the enquiry under Section 202 Cr.P.C was not conducted.
  • The complaint is a counterblast to earlier litigation and hence an abuse of process.

Complainant's Arguments

  • The cheque bears the petitioner’s signature and was issued to discharge legal liabilities.
  • The controversy regarding the cheque’s possession and alleged theft can only be decided during trial.
  • The court at the place where the cheque was presented and dishonour intimated has jurisdiction.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
K. Bhaskaran v. Sankaran Vaidhyan Balan AIR 1999 (SC) 3762 Jurisdiction of the court where the cheque was presented and dishonour intimated. The Additional Sessions Judge relied on this precedent to hold that the local court where the cheque was presented has jurisdiction to entertain the complaint under Section 138 of the Negotiable Instruments Act.

Court's Reasoning and Analysis

The court analyzed the jurisdictional issue in light of the precedent set by K. Bhaskaran v. Sankaran Vaidhyan Balan, concluding that the complaint is maintainable in the court where the cheque was presented and dishonour was intimated. The court observed that the allegations regarding the cheque being lost or stolen cannot be adjudicated at this stage and must be considered during trial. It further noted that the petitioner failed to demonstrate that the complaint does not disclose an offence or that the process of the court was abused. The court declined to interfere under Section 482 Cr.P.C, emphasizing that the complaint cannot be treated as a counterblast to previous litigation without merit. Consequently, the petition was dismissed without commenting on the merits of the case.

Holding and Implications

The petition under Section 482 Cr.P.C is dismissed.

The direct consequence of this decision is that the complaint under Section 138 of the Negotiable Instruments Act stands reinstated and the proceedings before the competent court shall continue. No new precedent was established by this ruling; it affirms the settled legal position regarding jurisdiction and the limited scope of interference under Section 482 Cr.P.C.

    Nishant Aggarwal Petitioner v. Kailash Kumar Sharma

    K.C Puri, J.:—Challenge in this petition under Section 482 Cr.P.C is the complaint dated 30.8.2010 (Annexure P-11) and order dated 12.5.2011 (Annexure P-16) passed by Additional Sessions Judge, Bhiwani whereby the order dated 5.3.2011 (Annexure P-15) passed by Judicial Magistrate Ist Class, Bhiwani, was set aside.

    Briefly stated, Kailash Kumar Sharma - complainant filed a complaint under Section 138 and 141 of the Negotiable Instruments Act, 1881 against Nishant Aggarwal accused, now petitioner, with the allegation that accused is Director of M/s Byri Steel Private Limited and his father B.L Aggarwal is the Managing Director of M/s Mechfeb Engineering Industries Private Limited situated at Meghalaya and Guwahati (Assam). The complainant was associated with both the above mentioned firms. The complainant used to bring business for accused ‘s firm from many private firms and Government departments. The accused had a verbal agreement with the complainant that he will pay 5% commission in the business brought by him above Rs. 30 lacs and 50% of the profit in business brought by him below Rs. 30 lacs from any private or Government department to the accuser's company. The complainant had worked on behalf of accuser's company as an attorney as well. The accused issued a post dated cheque drawn on Standard Charted Bank, Guhwati bearing No. 925504 dated 1.8.2009 for Rs. 28,62,700/- in favour of the complainant to discharge his legal enforceable liabilities. The complainant presented the abovesaid cheque for collection through its bankers Canara Bank, Bhiwani on 13.8.2009 and the cheque was returned unpaid on 11.9.2009 due to stop payment by the accused. The complainant approached for the payment of above said amount then accused told the complainant to present this cheque again for collection after one month. The complainant presented the cheque again for collection through its bankers Canara Bank, Bhiwani on 15.10.2009 and that cheque was returned unpaid on 14.12.2009 The complainant sent legal notice dated 11.1.2010 to the accused demanding the payment of Rs. 28,62,700/- within 15 days of the receipt of notice. The amount was not paid. Hence the complaint.

    The accused was summoned under Section 138 of the Negotiable Instruments Act, 1881. After his appearance, the accused - petitioner moved an application for staying the further proceedings in the complaint before the Judicial Magistrate Ist Class, pleading various facts including that cheque in question was found missing in the month of January 2006. Fresh information was given to the bank authorities on 4.4.2008 All of a sudden notice dated 11.1.2010 was received by the petitioner accused from the complainant demanding Rs. 28,62,700/- in respect of cheque in question. It is further pleaded that complaint under Sections 379, 411, 420 IPC has been filed against the present complainant. The Court of Additional Chief Judicial Magistgrate, Guhwati after enquiry under Section 200 Cr.P.C summoned the complainant and now bailable warrants have been issued against him. Another application for dismissing the complaint and sending the same to the Court having jurisdiction to entertain the complaint was filed. The main stress in that application was that enquiry as contemplated under Section 202 Cr.P.C has not been conducted. The said application was registered but ultimately learned Judicial Magistrate Ist Class vide order dated 5.3.2011 accepted the application with the observation that Judicial Court at Bhiwani has no jurisdiction and the complaint was returned for presentation before the proper Court having jurisdiction.

    So, far as the application for staying the proceedings is concerned, it was observed that since the complaint has been ordered to be returned, so no further order is required to be passed on that application.

    Feeling dissatisfied with the order dated 5.3.2011 passed by Judicial Magistrate Ist class, returning the complaint for presentation to the proper Court, the complainant filed revision against that order. The said revision was accepted vide order dated 12.5.2011 (Annexure P-16).

    Feeling dissatisfied with the said order dated 12.5.2011 (Annexure P-16) and the order of summoning, the present petition under Section 482 Cr.P.C has been filed.

    The main stress laid down in the grounds of revision is that in the month of January 2006, the petitioner found that one cheque bearing No. 925504 was missing and he informed the local police and the bankers about the said loss. The bankers were again informed on 4.4.2008 The controversy whether the cheque has been stolen or not cannot be adjudicated by this Court. That matter can only be decided during the course of trial by the trial Court. It is not disputed during the course of arguments that cheque in question bears the signatures of the petitioner. How the signed cheque came into possession of the complainant, can be adjudicated during the course of trial, alone.

    Learned Additional Sessions Judge, in his judgment dated 12.5.2011 has dealt with all the aspects regarding jurisdiction of the Civil Court at Bhiwani. Keeping in view the authority reported as K. Bhaskaran v. Sankaran Vaidhyan BalanAIR 1999 (SC) 3762, the Additional Sessions Judge came to the conclusion that cheque can be presented in the jurisdiction of the local Court, where the cheque was presented and intimation regarding dishonour of the cheque was sent.

    The provisions of Section 482 Cr.P.C can be invoked only if the petitioner is able to prove that in case the allegations made in the complaint are taken as it is, does not disclose any offence or there is Crl.M No. M-32542 of 2011 -5-any abuse of process of Court. The petitioner has not been able to make out a case within the ambit of the said facts. It cannot be stated that present complaint under Section 138 of the Negotiable Instruments Act, is the counter blast to the earlier litigation. So, without commenting on the merits of the case, in my view the present petition is without any merit and the same stands dismissed.

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    Comments

    Nishant Aggarwal Petitioner v. Kailash Kumar Sharma
    (Oct 31, 2011)