1. This matter coming on for orders this day is taken up for final disposal by consent of the learned Counsel appearing on both sides, heard and disposed of by this order.
2. Petitioners herein who are accused 1 and 2 have assailed the order dated 5-4-1999 passed in C.C. No. 931 of 1999 on the file of the JMFC, Chitradurga issuing process against them for an offence punishable under Section 138 of the Negotiable Instruments Act. Few facts necessary for disposal of this petition are stated as under:
The respondent herein presented a complaint under Section 142 of the Negotiable Instruments Act read with Section 200 of the Cr. P.C. inter alia contending that accused 1 had issued a cheque for a sum of Rs. 50,000 knowing fully well that there was no sufficient fund in his account. The complainant issued a notice dated 22-2-1999 demanding the amount due and the said notice sent by registered post is duly served on the accused on 24-2-1999. Since the accused failed to pay the amount within 15 days from the date of service of notice, the complainant presented the said complaint to initiate criminal action and punish the accused in accordance with Section 5 of the Negotiable Instruments Act. The learned Magistrate before whom the said complaint was presented, took cognizance of the offence, recorded the sworn statement of the complainant and marked 4 documents. On being satisfied with the complaint allegations and the sworn statement made by the complainant and the documents marked on his behalf, the learned Magistrate was of the opinion that there were sufficient grounds to proceed against the accused for offence punishable under Section 5 of the Negotiable Instruments Act and therefore ordered issue of summons to the accused.
3. This order is challenged on the following grounds:
That there exists no prima facie case against the accused to proceed for the offence alleged against them and necessary ingredients in prima facie proof of the offence punishable under Section 5 of the Negotiable Instruments Act are not forthcoming. The statutory notice does not indicate the exact value of cheque but attracts entire large amount of transaction and it does not strictly comply the provisions of clause (b) of Section 138 of the Negotiable Instruments Act and there is cognate violation of Sections 200 and 202 of the Cr. P.C. and the complaint is also barred by time.
4. I have heard the learned Counsel on both sides and perused the records. Learned Counsel for the petitioners raised two contentions for my consideration viz., that the learned Magistrate has erred in taking cognizance of the offence under Section 5 of the Negotiable Instruments Act in the absence of compliance of Section 202 of the Cr. P.C. and the demand notice issued by the complainant is not in accordance with law and is contrary to the ratio laid down by this Court in Dr. K.G. Ramachandra Gupta v Dr. G. Adinarayana, Learned Counsel for the petitioners has raised no other contention for my consideration. Controverting these submissions, learned Counsel for the respondent draws my attention to the law laid down by the Apex Court in Suman Sethi u Ajay K. Churiwal and Another.
5. I have given my careful consideration to these submissions the bar. Therefore the short question which arises for consideration in this petition is whether the proceeding initiated by the learned Magistrate is contrary to the provisions of law or is an abuse of process of Court and is therefore, liable to be quashed.
6. After hearing the learned Counsel on both sides, I am of the opinion that the two grounds canvassed for consideration by the learned Counsel for the petitioner have no merit. Section 204, sub-section (2) of the Cr. P.C. is no doubt mandatory which provides that no summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witness has been filed. This is only a procedural formality which requires to be observed by the Magistrate who has taken cognizance of the offence and was about to issue summons to the accused. The law requires that he shall not issue summons or warrant until a list of the prosecution witnesses has been filed. The Kerala High Court in Madhauan Nambiar and Others v Govindan and Another and the Himachal Pradesh High Court in Kahnu Ram and Others v Durga Dass, held that proceeding is not vitiated for passing the order of issue of process against the accused before filing of list of witnesses by the prosecution unless prejudice has been caused to the accused. If such list is produced before evidence is taken, no prejudice is caused. Even if the filing of the list held to be mandatory, the issue of process before the list being filed may be curable under Section 465 of the Cr. P.C. If there is no list of the witnesses filed by the complainant, it only means that there is no witness to examine on his behalf. If he makes an application with a list of witnesses subsequently showing sufficient cause for non-filing the list at the time of issue of notice, a Magistrate in his discretion may allow it.
7. Insofar as the second contention is concerned, learned Counsel draws my attention to the notice dated 19-2-1999 issued by the complainant through his Advocate, a copy of which is enclosed wherein he has notified certain purchases made by the accused from the complainant which was supplied to them through lorry bearing Registration No. KA. 25/5226, 331 bags of groundnuts seeds of 30 Kga each in all weighing 9,950 Kgs worth Rs. 1,24,553.00 (inclusive of their commission). It is stated that towards part payment of the money, after taking the delivery of the goods at the destination point viz., Gadag, he issued a cheque bearing No. 0504465, dated 20-11-1998 drawn on the Station Road Branch of M/s. Vijaya Bank, in favour of his client's concern for Rs. 50,000/- assuring his clients of its encashment when presented. The cheque was presented to the Vijaya Bank at Chitradurga. But to their surprise they received a reference bearing No. 54 of 1999, dated 16-2-1999 from the Manager of Chitradurga Branch of M/s. Vijaya Bank returning the cheque stating that the cheque is returned as unencashed at the Gadag Branch of M/s. Vijaya Bank, due to non-maintenance of sufficient funds in the account of the accused. He therefore called upon them not only to pay the cheque amount of Rs. 50,000 but also the balance amount due to him with 18% interest.
8. Reliance is placed by the learned Counsel for the petitioners to the decision rendered by this Court in Dr. K.G. Ramachandra Gitpta's case. supra and relied upon the observation made at para 6, page 1587 as under:
"Since the demand was made for the total amount of Rs. 2,51,600 but not merely for the value of the dishonoured cheque amounts, though it is mentioned that the said demand made is inclusive of the value of the dishonoured cheques, I find that the said demand made is not the demand to be made as required under Section 5 proviso to clause (b) of the Act. The balance amount due under the original loan transaction has been combined with the value of the dishonoured cheque amounts and a common demand has been made by the said notice to the accused to make payment".
His Lordship was considering two sets of facts. In the earlier part of the judgment in the criminal appeals arising out of the order of acquittal rendered by the Trial Court for the offence under Section 5 of the Negotiable Instruments Act, his Lordship observed relying upon the Apex Court's judgment in Suman Sethi's case, supra, as under:
"Though in the said notice, a demand is also made for payment of the balance of the principal amount of the loan with up-to-date interest, in addition to the value of the two dishonoured cheques of Rs. 1,00,000, on that ground, it cannot be said that the notice is invalid in view of the latest decision of the Supreme Court in Suman Sethi's case, supra".
But while considering the second set of facts, it is held that:
"The complainants are different and the cheques have been issued in discharge of liability under separate loan transactions. So in the circumstances, I find that a combined notice issued on behalf of the complainants in two different cases, though the complainants are related to each other as husband and wife in respect of separate cheques issued in their favour, making a demand for payment of the total value of all the three cheques issued in favour of different complainants is not valid. Further, since the demand was made for the total amount of Rs. 2,51,600 but not merely for the values of the dishonoured cheque amounts, though it is mentioned that the said demand made is inclusive of the value of the dishonoured cheques, I find that the said demand made is not the demand to be made as require under Section 5 proviso to clause (b) of the Act. The balance amount due under the original loan transaction has been combined with the value of the dishonoured cheque amounts and a common demand has been made by the said notice to the accused to make payment".
9. In fact these two observations made at different intervals in the said judgment contradicts but I do not see any contradiction when his Lordship has rejected the contention that claiming interest, costs etc., along with the cheque amount is not in compliance with the provisions of Section 5, clause (b) of the Act. In fact, the Apex Court in Suman Sethi's case cited supra, has clarified this position. The Apex Court was considering and interpreting the language used in Section 5 of the Act including clauses (b) and (c) and also the presumption arises under Section 139 of the Act and the law is laid down by the Apex Court as follows:
"7. There is no ambiguity or doubt in the language of Section 5. Reading the entire section as a whole and applying commonsense, from the words, as stated above, it is clear that the legislature intended that in notice under clause (b) to the proviso, the demand has to be made for the cheque amount. According to Dr. Dhawan, the notice of demand should not contain anything more or less than what is due under the cheque.
8. It is well-settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the "said amount" i.e., cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to "Said amount" there is also a claim by way of interest cost etc. Whether the notice is bad would depend on the language of the notice. If in a notice while giving up break-up of the claim the cheque amount, interest damages etc. are separately specified, other such claims for interest, cost etc., would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, notice might well fail to meet the legal requirement and may be regarded as bad".
At para 9 it is held that:
"9. This Court had occasion to deal with Section 5 of the Act in Central Bank of India v M/s. Saxons Farms, and held that the object of the notice is to give chance to the drawer of the cheque to rectify his omission. Though in the notice demand for compensation, interest, etc., is also made drawer will be absolved from his liability under Section 5 if he makes the payment of the amount covered by the cheque of which he was aware within 15 days from the date of receipt of the notice or before complaint is filed".
The purpose of issue of a notice is stated at para 10 as follows:
"10. In Section 5 legislature clearly stated that for the dishonoured cheque the drawer shall be liable for conviction if the demand is not met within 15 days of the receipt of notice but this is without prejudice to any other provision of the Act. If the cheque amount is paid within the above period or before the complaint is filed the legal liability under Section 5 will cease and for recovery of other demands as compensation, costs, interest etc., a civil proceeding will lie. Therefore, if in a notice any other sum is indicated in addition to the "said amount" the notice cannot be faulted, as stated above".
Therefore, the Supreme Court has laid down the purport and object of the notice required under Section 138(b), the object being is to notify the accused to repay the amount so demanded in the notice within 15 days from the date of service of notice. Failure to comply the demand is to face the prosecution under Section 5 of the Negotiable Instruments Act. There is a specific demand for the cheque amount apart from the balance of amount due to the complainant by the accused. There is no denial of the demand made nor compliance of the demand. If the accused had paid the cheque amount demanded in the notice, they would have complied with the notice of demand as the extra amount claimed in the notice is severable and are not bound to honour that extra demand. In view of the settled position of law, the interpretation given by his Lordship Justice K.R. Prasad Rao in the later part of the judgment in Dr. K.G. Ramachandra Gupta specifically cited supra, is difficult to follow. No other contentions are canvassed for consideration. No infirmity in the presentation of the complaint and the cognizance taken by the learned Magistrate is pointed out by the learned Counsel for the petitioners. Therefore, the presentation of the complaint and the cognizance taken by the learned Magistrate against the petitioners under the circumstances in my opinion is not an abuse of process of Court calling for interference to meet the ends of justice. What circumstances, interference under Section 482 of the Cr. P.C. is called for has been amply demonstrated and explained by the Apex Court. In Minakshi Bala v Sudhir Kumar and Others, the Apex Court held that the inherent jurisdiction of the High Court to quash the proceeding can only be invoked except where forensic exigencies and formidable compulsions justify such a course. Therefore is State of Haryana and Others v Ch. Bhajan Lal and Others , at para 108, the Supreme Court has listed certain categories of cases wherein the High Court may, in exercise of powers under Article 226 or under Rule 482 of the Cr. P.C. interfere in proceedings relating to cognizance or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. But the power should be exercised very sparingly and that too in the rarest of rare cases. In M/s. Pepsi Foods Limited and Another v Special Judicial Magistrate and Others , the Supreme Court has observed that nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory.
10. The discussion made supra does not compel the Court to interfere with the impugned order and therefore there is no material for quashing the proceedings. Petitions is accordingly dismissed.