- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1475 OF 1999 WRIT PETITION NO.1475 OF 1999 WRIT PETITION NO.1475 OF 1999 Ghanshyam G. Khanchandani ...Petitioner vs. The State of Maharashtra & Others ...Respondents Mr.G.G.Khanchandani in person appears Mr.AH.H.Ponda for Respondent Nos.2 to 6 Mr.Y.S.Shinde A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 28,2008 : AUGUST 28,2008 : AUGUST 28,2008 P.C.: P.C.: P.C.: 1. I have heard the petitioner appearing in person, the learned A.P.P. for State of Maharashtra and the learned Advocate for Respondent Nos.2 to 6. By this Writ Petition under Article 227 of Constitution of India, the petitioner appearing in person has challenged the Judgment and Order dated 3rd July 1997 passed by the learned Metropolitan Magistrate as well as the Judgment and Order dated 11th June 1999 passed by the learned Additional Sessions Judge by which the said order dated 3rd July 1997 was confirmed in Appeal. 2. The Respondent No.4 filed a complaint against the petitioner alleging commission of offence under sections 406,408, 420 read with section 138 of the Negotiable Instruments Act,1881. The fourth respondent alleged that the petitioner had issued two cheques dated 17th May 1994 and 25th May 1994 in the sum of Rs.20,000/- each to the fourth - 2 - respondent. The said cheques were dishonoured. The allegation made by the fourth respondent in the said complaint was that though the petitioner had promised the fourth respondent to pay the total outstanding amount of Rs.2,10,000/- he had not made payment of the said amount. Prior to the filing of the complaint, the fourth respondent had allegedly issued notice dated 2nd December 1994. 3. In the said complaint, the Saraswat Co-op Bank Limited. submitted a letter stating that both the cheques dated 17th May 1994 and 25th May 1994 were earlier deposited on 11th November 1994 and were dishonoured on 12th November 1994. It was stated in the letter that the cheque dated 25th May 1994 was again deposited on 6th December 1994 and was returned on 7th December 1994 for the reason that the funds were insufficient. In another communication issued by the United Bank of India to the learned Magistrate pursuant to the summons issued by the learned Magistrate, the said bank informed that the account on which the said cheques were drawn was closed on 19th July 1995. 4. In the complaint, process was issued under section 138 of the said Act of 1881. By order dated 7th April 1997, the learned Additional Chief Metropolitan Magistrate recalled the order issuing process. In the said order, the learned Judge recorded a finding that the cheques were deposited after its - 3 - expiry period and that notice of demand was invalid. 5. An application was made by the petitioner before the learned Magistrate contending that action needs to be taken against the fourth respondent and its every partner for the offence of purgery (for submitting of false evidence) under section 195 of the Indian Penal Code and section 340 of the Code of Criminal Procedure,1973 r/w section 193 of the Indian Penal Code. 6. On 3rd July 1997, an order was passed by the learned Magistrate in exercise of power conferred under section 250 of the said Code of 1973 directing the fourth respondent-complainant to pay compensation of Rs.500/-. However, the learned Magistrate rejected the application made by the petitioner for initiating the action for purgery. An appeal was preferred by the petitioner under section 340 of the said Code of 1973 before the Sessions Court. In the said Appeal, the prayer made by the petitioner was for a direction to prosecute the respondent Nos.2 to 6 for purgery and also for recovery of costs of Rs.76,000/- from the said respondents. The said Appeal has been dismissed. 7. The petitioner appearing in person invited my attention to the averments made in the complaint filed by the fourth respondent and the verification statement of the fourth - 4 - respondent recorded in the private complaint. He also invited my attention to the information furnished by the Saraswat Bank and the United Bank of India before the court of the learned Magistrate pursuant to the summons issued by the learned Magistrate. He pointed out that the cheques were deposited by the fourth respondent after the same were time barred. He submitted that the cheques were deposited by the fourth respondent knowing fully well that the same were time barred. He submitted that the complaint is based on the notice which is time barred. He submitted that the fourth respondent and other contesting respondents were guilty of commission of offence under section 193 of the Indian Penal Code. He submitted that this serious aspect was brought by him to the notice of the concerned Courts. He submitted that the Courts below ought to have taken action as the concerned respondents were guilty of an offence under section 193 of the Indian Penal code. The learned counsel for the second to fourth respondents supported the impugned order. 8. I have considered the submissions. I have also carefully perused the petition and the annexures thereto. The allegation of the petitioner is that Respondent Nos. 2 to 6 have committed an offence punishable under section 193 of the Indian Penal Code. The allegation is that intentionally false evidence was given and/or there was a fabrication of false evidence for the purpose of using the same in the complaint. - 5 - Under section 195 of the said Code of 1973, no court can take cognizance of any offence under section 193 of the Indian Penal Code when such offence is alleged to have been committed in or in relation to any proceedings in any court except on the complaint in writing of that court or by such officer of the court as that court may authorise in writing in that behalf. Sub section 1 of section 340 of the said Code of 1973 reads thus : 340. Procedure in cases mentioned in section 195 - (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary - (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of - 6 - the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate, and (e) bind over any person to appear and give evidence before such magistrate. 9. At the outset, it must be stated here that only the 4th respondent is the complainant and no other respondents are the complainants. However, verification statement of third respondent has been recorded in the complaint. Combined reading of the complaint and verification statement of the 3rd respondent shows that the petitioner purchased dyes and chemicals under various challans and was liable to pay Rs.2,10,000/- to the second respondent as per the said challans. Towards the said liability, the petitioner had allegedly issued two cheques in the sum of Rs.20,000/- each dated 17th May 1994 and 25th May 1994. The allegation in the complaint is that both the cheques drawn on United Bank of India were dishonoured on 12th November 1994 and on the instructions of the petitioner the said cheques were again presented on 8th December 1994 and the same were dishonoured. The allegation is that payment was not made by the petitioner to the second respondent. In the verification statement of the third respondent, there is a general statement made that the cheques in the sum of Rs.20,000/- were dishonoured. Pursuant to the summons issued by the trial court, the Chief - 7 - Manager of the Saraswat Co-op bank Ltd submitted information regarding dishonour of the cheques. According to the Saraswat Co-op Bank Ltd., the cheque dated 25th May 1994 was deposited on 6th December 1994 and was returned on 7th December 1994 on the ground that funds were insufficient. It stated that the other cheque dated 17th May 1994 was not deposited on 6th December 1994. However, both the cheques were earlier deposited on 11th November 1994 and were dishonoured. United Bank of India submitted information to the trial court pursuant to the witness summons stating that the cheque dated 25th May 1994 was presented to the said bank by the Saraswat Co-op Bank Ltd on 6th December 1994 and the same was dishonoured on account of insufficient funds. It is stated that as regards other cheque, the payment was stopped on 24th May 1994. The account on which both the cheques were drawn was closed by the firm of the petitioner on 19th July 1995. 10. As pointed out earlier, in the complaint an assertion has been made that both the cheques were presented and on 12th November 1994, the same were dishonoured. This statement is supported by the information furnished by the Saraswat Co-op Bank Limited to the trial court. The only incorrect statement made by the complainant is that both the cheques were again deposited in December 1994 and the same were dishonoured. The reports submitted by the Banks show that only one cheque dated 25th may 1994 was deposited in December 1994 . Perusal of the - 8 - complaint shows that the bank statement and memorandum recording dishonour were annexed to the complaint. In the verification statement, the third respondent has stated that both the cheques were dishonoured due to insufficient funds. This statement cannot be said to be factually incorrect as both the cheques were dishonoured when presented on 11th November 1994 which was before expiry period of six months from the dates mentioned on the cheques. The information furnished by both the banks shows that the cheques were not dishonoured on the ground that the same were barred by time, but were dishonoured on the ground of insufficiency of funds. 11. The order issuing process was recalled by the learned Magistrate on the ground that notice was belatedly served. Process was not recalled on the ground that any false statement was made or false evidence was given. 12. In the circumstances, there was no material on record to proceed against concerned respondents for the offence punishable under section 193 of the Indian Penal Code. Therefore, the courts below were justified in not taking any further action. 13. There is no merit in the petition and the same is accordingly dismissed. - 9 - JUDGE JUDGE JUDGE