2022 (9) TMI 382 - HC - Indian Laws

Court dismisses petition challenging Section 138 complaints; joint trial, preliminary statements, notices rejected

NASEER AHMAD SHEIKH Versus MOHAMMAD SULTAN BHAT

The court dismissed the petition challenging multiple complaints under Section 138 of the Negotiable Instruments Act. The petitioner's arguments regarding ... Dishonor of Cheque - service of statutory demand notices - commission of offences under Section 138 of the Negotiable Instruments Act - HELD THAT:- A perusal of the impugned complaints indicate that the respondent/complainant had sent statutory notices of demand to the petitioner through registered post. Learned counsel for the petitioner has submitted that the petitioner got an information under Right to Information Act, according to which, the notices have not been served upon the petitioner but the same have been served upon some other person - The question whether the statutory notices of demand were actually served upon the petitioner is a triable issue and a defence available to the petitioner which could not have been gone into by the learned trial Magistrate at the time of taking cognizance of the complaint and issuance of process against the petitioner. The ground urged by learned counsel for the petitioner is, therefore, without any substance. In most of the cheque bounce complaints, the basis is invariably a commercial transaction and if submission of learned counsel for the petitioner is accepted, then the provisions contained in Section 138 of the Negotiable Instruments Act would become redundant. Even otherwise, the contention raised by the petitioner can only offer a defence to him which can be considered only after the trial of the case. The instant petition is not otherwise maintainable as through the medium of instant petition, the petitioner has challenged as many as four complaints and four separate orders directing issuance of process against him by the trial court. A joint petition in respect of different causes of action is not maintainable. On this ground also, the petition deserves to be dismissed. Petition dismissed. Issues:Challenging multiple complaints under Section 138 of the Negotiable Instruments Act, joint trial of complaints, recording of preliminary statements on oath, service of statutory notices of demand, commercial transaction as a defense in criminal proceedings, maintainability of the petition challenging multiple complaints.Analysis:1. The petitioner challenged four complaints filed by the respondent under Section 138 of the Negotiable Instruments Act, pertaining to different cheques. Three complaints were before the Court of Judicial Magistrate, 1st Class, Bandipora, and one before the Court of Additional Mobile Magistrate, Bandipora.2. The petitioner's counsel argued that the trial Magistrate had jointly tried all four complaints, which was allegedly not in accordance with the law. However, no order was presented to show that the complaints were directed to be tried jointly, leading to the dismissal of this ground.3. Another contention was that the preliminary statements in the complaints were not recorded on oath as required by law. Upon examination of the annexed preliminary statements, it was found that they were indeed recorded on oath, contradicting the petitioner's claim.4. The petitioner also claimed that statutory notices of demand were not served upon him, thus questioning the cause of action for the complaints. However, the complaints indicated that notices were sent via registered post. The issue of actual service of notices was deemed a triable matter and not to be considered at the stage of taking cognizance.5. The petitioner argued that since there was a commercial transaction between the parties, criminal proceedings should not have been initiated. The court noted that in cheque bounce cases, commercial transactions often form the basis, and such a defense could only be considered after trial, not as a ground for dismissal at this stage.6. Additionally, the petition was challenged for its maintainability as it combined challenges to four complaints and orders, which were considered separate causes of action. The court held that a joint petition for different causes of action was not maintainable, leading to the dismissal of the petition.7. In conclusion, the court found no merit in the petition and dismissed it. A copy of the order was directed to be sent to the trial court for information.