JUDGMENT
V.S. Aggrwal, J.
1. The present petition is directed against the
order passed by the learned Metropolitan Magistrate
dismissing the application filed by the petitioner
(Gautam Nimani ) for recalling the summoning order
dated 3rd December, 1997.
2. Some of the relevant facts are that the respondent had filed a criminal complaint with respect
to the offence punishable under Section 138 Negotiable
Instruments Act, 1881. It had been asserted by the
respondent/complainant that the respondent/complainant
M/s S.N. Surekha & Co. is a sole proprietorship
concern. The petitioner had purchased shares of
Rajasthan Spinning and Weaving Mills. Acting on the
representation of the petitioner the complainant had
agreed to sell the shares. As per rules of Bombay
Stock Exchange, the petitioner was under an obligation
to clear all the dues of the respondent within a
period of 15 days. The respondent/complainant is
entitled to recover the outstanding dues with Interest
at 3% per mensum. It is alleged that cheque for Rs. 10
lakh was given by the petitioner which was dishonoured
on it being presented. After serving the due notice
and there being non payment of the amount the
complaint had been filed.
3. The learned Metropolitan Magistrate had recorded
the statement of two witnesses and thereupon passed
the impugned order summoning the petitioner for the
above said offence. The petitioner filed an
application for recalling the order so passed and vide
the impugned order the learned Metropolitan Magistrate
dismissed the said application. Hence the present
petition.
4. Learned counsel for the petitioner has raised
two pertinent arguments (i) the attorney of the
respondent could not have appeared in the preliminary
evidence and in any case he is not the present
conversant with the facts and consequently his
evidence could not be considered and (ii) even as per
the assertions and material on the record the impugned
cheque was without any liability contemplated under
Section 138 of the Negotiable Instruments Act. The
two cheques constitute the total payment of interest
that had been given. In any case orders passed by the
Mumbai Stock Exchange and SEBI on its own complaint is
binding.
5. A preliminary objection was raised on behalf of
the complainant that once the order summoning the.
petitioner had been passed the court had no power to
recall the said order.
6. So far as the respondent’s contention is
concerned reference can well be made to the decision in the case of K.M. Mathew v. State of Kerala and Anr. . It was specifically held that it is open to the accused to plead before the Magistrate
that process against him ought not to have been
issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that
there is no offence for which accused could be tried.
It appears that the matter has been referred by the Supreme Court in the case of Nilamani Routray v. Bennett Coleman & Co. Ltd. to a larger bench. But as the position stands today the
ratio decidendi of the decision in the case of K.M.
Mathew (Supra) would bind and in face of the said
decision the preliminary objection raised by the
respondent for the present must be rejected.
7. Reverting back to the contentions of the
petitioner for purposes of the present decision it was
not in dispute that on behalf of the respondent his attorney had appeared as CW1. Under Section 200 of the Code of Criminal Procedure a Magistrate taking cognizance of an offence is duty bound to examine on
oath the complainant and witness is present. Clause
(a) and (b) of the proviso to Section 200 would not be
attracted in the present case. But the expression
‘complainant’ in the context does not mean the
complainant himself. The law does not insist that it
has to be the same person. Once he has legally
appointed an attorney he is competent to make the
statement on behalf of the complainant because he
steps into the shows of the complainant. As regards
the contention that the attorney is not shown to be conversant with the facts of the case once again the
argument is without any basis. The respondent had
also examined an assistant from the Corporation Bank.
He had brought the necessary record and had proved
about the cheque having been presented and it being
not honoured because of insufficiency of funds. The
other ingredients for purposes of the summoning the
petitioner fell from the statement of the attorney and
once the ingredients as such were satisfied it is
obvious that the attorney of the respondent was
competent to depose regarding the relevant facts.
Once he has so deposed the argument so much thought of
by the learned counsel must fail.
In that event it was contended that the cheque
is without consideration and the argument as already
referred to above raised was that as per the letters
of SEBI the amount claimed could not be a liability
contemplated under Section 138 of the Negotiable
Instruments Act.
9. In this regard at this stage the reply of the
respondent pertaining to this controversy necessarily
has to be taken note of. In paragraph 5 of the reply
to the application filed by the petitioner for
recalling the summoning order it had been pleaded:-
“Contents of para 5 are wrong and denied. It is submitted that there existed a dispute
between the parties herein regarding payments
which the accused had to pay to the
complainant. The accused was bound to pay the
complainant a sum of Rs. 1.44 crores on account
of sale of shares but, the accused failed to
do so within the stipulated time period. Left
with no alternative, the complainant lodged a
complaint before the SEBI seeking
adjudication. It is not denied that SEBI
directed the accused vide its letter dated
23rd September, 1996 to pay the complainant
its dues. The said letter reads:-
“….. As on date, they have received only 1.412 crores leaving a balance payment of
Rs. 2.73 lacks and interest for the delayed
period amount to Rs. 17.5 lacs.”
It is submitted that the accused issued two
cheques amount to Rs.17.5 lacs towards payment
of interest as referred to in the above said
letter of SEBI. It is wrong and denied that
at that point of time, the outstanding was
Rs. 2.73 lacs only. In fact, the total amount
due at that point of time as referred to by
the accused was Rs. 20.23 lacs.”
10. Perusal of the aforesaid clearly show that a
dispute of fact has been raised as to what amount and
how much was due. It is denied by the respondent that
at that point of time outstanding amount was Rs. 2.73
lakhs. It is alleged t hat in fact Rs. 20..23 lakhs
was due. In face of this controversy at this stage no
further opinion need be expressed. It had to be
adjudicated and gone into after the evidence is
recorded and therefore it, must be held that petition
so filed is without merit. Thus at this stage no
opinion is expressed regarding the letter of SEBI.
11. FOR these reasons petition fails and is
dismissed.