Joint complaint against an accused not maintainable under Section 138 N.I. Act: J&K High Court

High Court of J&K
Source: JK Legal Forum
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  • Post published:May 19, 2021
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The High Court of Jammu and Kashmir while hearing a petition filed under Section 561-A of the Jammu & Kashmir Code of Criminal Procedure (now repealed) seeking quashment of order dated 28th of February, 2018 (impugned order) passed by learned District Mobile Magistrate, Sopore (“the trial court”) in a complaint tilted “Haji Bashir Ahmad Dar & another vs. Mohammad Shafi Mir” held that a joint complaint filed by two or more persons against an accused is not maintainable.

The Court held that the complaint, which is still pending adjudication before the trial court, can still continue for and on behalf of one of the two complainants and the other complainant can be asked to chose his remedy separately as may be permissible in law.

Brief Facts:
The respondents had filed a joint complaint against the petitioner before the trial court on the allegation that the petitioner owed an amount of Rs.2,50,000/ to the respondents as consideration for purchasing the land of the respondents and with a view to discharge the liability, the petitioner had issued four cheques to the respondents, three cheques for an amount of Rs.50,000/ each and one cheque for Rs.1,00,000/ on account No.3165156346 maintained by the petitioner with Central Bank of India, Branch office Main Chowk, Sopore. It was claimed that the said cheques when presented by the respondents before the concerned Bank were returned with the endorsement “funds insufficient”. After the cheques were bounced by the concerned Bank, the respondents claimed to have requested the petitioner to pay the amount of cheques which had remained un-encashed for want of sufficient funds in the account of the petitioner. The petitioner, however, did not pay any heed to the request of the respondents. The respondents served a common legal notice dated 7th of July, 2014, requesting the petitioner to pay the amount mentioned in the cheques within 15 days of the receipt of notice but the petitioner chose not to liquidate the amount. Having faced with the refusal by the petitioner to pay the cheque amount, the respondents joined hands to file a complaint before the trial court, from where the impugned order has arisen.

Proceedings before the Trial Court:
The petitioner had moved an application for dismissal of the complaint on the ground that a joint complaint by the respondents was not maintainable. The application was objected to by the respondents. The trial court considered the rival contentions and dismissed the application of the petitioner without returning any finding as to the maintainability of joint complaint under Section 138 read with Section 142 of the Negotiable Instruments Act.

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The application was dismissed on the ground that the trial court after having taken cognizance of the complaint was bereft of jurisdiction to review its order. Reliance was placed on the judgment of the Supreme Court in Adalat Prasad v. Roop Lal Jindal & Ors., (2004) 7 SCC 338 and Subramanium Sethuraman vs. State of Maharashtra, AIR 2004 SC 4711.
It is this order, which is assailed by the petitioner in this petition.

Before the High Court:
Mr. N. H. Shah, learned senior counsel appearing for the petitioner vehemently argued that neither under Section 200 of the Code of Criminal Procedure nor under Section 138 read with Section 142 of the Negotiable Instruments Act, a joint complaint is envisaged. He further argued that though the respondents claimed that there was joint liability towards them to be discharged by the petitioner but a joint notice issued by the respondents through their counsel, Mr. Musadiq Mohammad Shora, was not permissible in law.

On the other hand, Mr. Shafqat Nazir, learned counsel appearing for the respondents argued that in the absence of specific bar under Section 138 read with Section 142 of the Negotiable Instruments Act, a joint complaint by two or more persons is maintainable, more so when the bounce cheques have been issued by the accused to discharge a joint liability towards the complainants. He argued that the judgments relied upon by Mr. N. H. Shah pertain to the complaint under Section 200 of the Code of Criminal Procedure and Chapter XVII of the Negotiable Instruments Act is an independent and complete Code itself and is, therefore, not controlled or regulated by the general provisions of the Code of Criminal Procedure.

The Single Bench of the High Court presided over by Justice Sanjeev Kumar after hearing both sides noted that the only question that arise for consideration in this petition is whether a joint complaint under Section 138 read with Section 142 of the Negotiable Instruments Act (“the Act” for short) is maintainable.

The Court observed that the reference to the complainant as a “person” in Section 138 of the Act, prima facie, indicates that Section 138 too envisages a complaint by a single person. Similarly, if we look at the provisions of Section 141 of the Act, which pertains to the offences by the companies, it also refers to a “person” committing an offence under Section 138.

The Court noted that under Section 143 of the Act, the cases under Section 138 of the Act are required to be tried summarily by following the procedure laid down under the provisions of Sections 262 to 265 of the Code of Criminal Procedure. It is only when at the commencement of, or in the course of, a summary trial, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness that may have been examined and proceeded to hear or rehear the case in the manner provided by the Criminal Procedure Code. It is, thus, not correct to say that Chapter XVII is a complete Code in itself and exclude the applicability of the Criminal Procedure Code.

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The Court further observed in the judgment that a conjoint reading of Sections 138141142 and 143 of the Act, undoubtedly, point towards one conclusion that even under Chapter XVII of the Act, a joint complaint by two or more persons against an accused is not maintainable.

The Court held that the joint complaint filed by the respondents is not completely vitiated in law and, therefore, the complaint, which is still pending adjudication before the trial court, can still continue for and on behalf of one of the two complainants and the other complainant can be asked to chose his remedy separately as may be permissible in law.

The Court held that, this petition is allowed in part and the impugned complaint and the proceedings taken thereon, in so far as respondent No.2 is concerned, shall stand quashed. The complaint shall, however, proceed in so far as respondent No.1 is concerned. It is made clear that passing of this order and the quashing of the complaint, in so far as respondent No.2 is concerned, shall not come in his way to file a complaint after following due process of law afresh.

Cases Referred:

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