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2002 DIGILAW 860 (JHR)

Jasmin B. Shah (B) v. State Of Jharkhand

2002-08-13

D.N.PRASAD

body2002
ORDER Deoki Nandan Prasad, J. 1. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceeding including the order dated 7.7.2001, whereby and where-under the learned Chief Judicial Magistrate, Jamshedpur took cognizance of the offence under Section 138 of the Negotiable Instruments Act. 2. The prosecution case as alleged is that the complainant is the broker of Indo Shares and Pin Trade Ltd., Mumbai who is the member of Mumbai Stock Exchange and he was dealing in shares on line trading of shares by the G. Set (Computer Bolt) provided by Mumbai Stock Exchange after depositing the security with the accused company. It is further alleged that due to some reasons membership of accused company was terminated by the Stock Exchange which compelled the complainant to file a claim of Rs. 5,56,555.70 before the Arbitration Committee Stock Exchange, Mumbai being Ref. No. 105 of 2000. A compromise was arrived at in between the parties and the accused Company agreed to settle the matter on payment of total sum of Rs. 4,58,894.07 ps. and accordingly the petitioner Company issued five post dated cheques of different dates in favour of the complainant but on submission of the cheques, it could not be encashed rather it was returned unpaid with remark "fund insufficient". Thereafter, the complainant issued legal notice to the accused for payment of the amount but the same has not been paid. Accordingly, the FIR was lodged. 3. Some witnesses were examined during enquiry under Section 202 of the Code of Criminal Procedure and the CJM after finding prima facie case took cognizance for the offence under Section 138 of the Negotiable Instrument Act. 4. The learned counsel appearing on behalf of the petitioner submitted that the Court below committed error in taking cognizance as the complainant was to furnish security of Rs. ten lakhs against bad delivery for which the complainant was also reminded to furnish the security and that the security amount of Rs. 10 lakhs was later on enhanced to Rs. 50 lakhs and due to non- deposing the security amount which was the condition precedent the complainant is not entitled to get back the money. ten lakhs against bad delivery for which the complainant was also reminded to furnish the security and that the security amount of Rs. 10 lakhs was later on enhanced to Rs. 50 lakhs and due to non- deposing the security amount which was the condition precedent the complainant is not entitled to get back the money. It is also submitted that a notice purported to have been issued by the complainant which is beyond the period of limitation and a reply thereof was sent explaining the ground that the guarantee of Rs. 50 lakhs since has not been furnished, the amount under the cheque were not paid. It is also submitted that the business transaction in between the parties is a case of civil nature and this case has been filed after the expiry of required limitation as envisaged under Section 138 of the Negotiable Instrument Act. The learned counsel appearing on behalf of the petitioner also relied upon a case of Uniplus India Ltd. and Ors. v. State of NCT, Delhi and Anr., reported in 2001 (6) SCC 8 . 5. On the other hand, the learned counsel appearing on behalf of the opposite party No. 2 contended before me that admittedly Rs. 4,58,894.07 ps. is due against the petitioner-Company of which five post dated cheques were also issued and the said cheques already bounced due to insufficient fund and, therefore, Section 138 of the Negotiable Instruments Act is clearly attracted. It is also submitted that actually there was a settlement arrived at between the parties and the order was passed in the Arbitration that the said amount being Rs. 4,58,894/- will be full and final settlement payment and, therefore, the question of furnishing security does not arise when the matter was settled for payment of the said amount before the Arbitration as well as the petitioner already issued five post dated cheques in respect of the said amount which was bounced, which will be evident from Annexures C and D of the counter affidavit. It is further submitted that the notice is not beyond the period of limitation and the Court below rightly took cognizance. 6. It is an admitted position that five post dated cheques were issued by the petitioner in favour of the complainant, which could not be encashed due to insufficient fund. It is further submitted that the notice is not beyond the period of limitation and the Court below rightly took cognizance. 6. It is an admitted position that five post dated cheques were issued by the petitioner in favour of the complainant, which could not be encashed due to insufficient fund. Legal notice was also issued to the petitioner demanding the payment of the said amount but even then the said amount has not been paid. However, even if there is any lacuna as regards to the filing of the complaint case, that will be considered and decided by the trial Court after hearing both parties as per evidence collected. The allegation as made out in the complaint apparently constitute the offence. The Court below took cognizance after finding prima facie case, which does not requires to be interferred. 7. Thus, I do not find any merit in this application, which is dismissed. However, the petitioner may raise all the material points, if he so likes, at the time of appropriate stage.