Our company has three directors. My wife was also a director for sometimes but she resigned from that post, and her resignation accepted in general meeting. One of our shareholder (complainant) has a company in Jharkhand, and he is also a supplier of some goods from our company.
He supplied some goods and made payment through cheque. Total of 238 cheques has issued in the last four years. Thirty cheques were bounced by the bank on the ground to stop cheque payment. My wife issued all those cheques. After her resignation, I stopped them. Therefore, cheques became bounced.
He has some disputed with our company, and for setting his score, he filed this complaint under section 200 crpc for cheque bounce case. He knew that my wife had resigned from that post. I want to challenge this complaint.
Question from: Andhra Pradesh
Advice
According to the facts of your case, the offence under section 138 of the Negotiable Instrument Act has been committed by the drawer of those cheques. Section 200 of the Code of Criminal Procedure (CrPC) empowers the Magistrate to take cognisance of the offence on the complaint. However, the Magistrate, at this stage, does not appreciate the evidence to determine that crime has committed.
The Magistrate admits the complaint if the documents or evidence adduced along with the complaint prima facie show that offence has made out against the accused. After that, Magistrate may issue process (summon or warrant) against the accused. The magistrate may postpone the issue of process against the accused if he thinks that some inquiry or investigation is necessary for deciding whether there are sufficient grounds for proceeding.
If the Magistrate does not satisfy that there is sufficient ground to issue process, then he shall dismiss the complaint under section 203 of the CrPC.
How to challenge the complaint
When the Magistrate issued the process against the accused, he cannot take it back. The Code of Criminal Procedure does not provide the power of review so the Magistrate could not review its process or cancel the summon or warrant.
If the court has issued the process, then you cannot file any recall application under section 203 CrPC. In Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338 the Supreme Court held that if the Magistrate did not dismiss the complaint and issued process, then the accused cannot approach the court under section 203 CrPC for dismissal of the complaint because the stage of section 203 has already over.
Hence, you cannot challenge the complaint under section 203 of the CrPC. The court does not hear the accused at the stage of section 203. The accused has no role at this stage (Bholu Ram v. State of Punjab, (2008) 9 SCC 140)
In the absence of the review power, you can challenge the complaint under section 482 CrPC. You may invoke the inherent power of the High Court under section 482 CrPC to do justice in your case (Iris Computers Ltd. v. Askari Infotech (P) Ltd., (2015) 14 SCC 399).
If you have sufficient reason to stop those cheques, then no offence is made out under section 138 of the NI Act. If you have documentary proof that there were some adequate grounds for stopping the payment, then the High Court may quash the complaint under section 482 CrPC.
