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2003 DIGILAW 293 (ORI)

RAMA CHANDRA PANIGRAHI v. STATE OF ORISSA

2003-04-16

P.K.TRIPATHY

body2003
P. K. TRIPATHY, J. ( 1 ) PETITIONER is the accused in I. C. C. No. 680 of 2001 of the Court of S. D. J. M. , Bhubaneswar and the opposite party No. 2 is the complainant in that case. Petitioner filed the aforesaid complaint alleging the offence punishable under S. 138 of the Negotiable Instruments Act, 1881 (in short, 'the Act' ). ( 2 ) IT reveals from certified copy of the complaint that the complainant has alleged that accused took a friendly loan of Rupees 11,68,000/- from the complainant on 8-8-2001. In that respect accused executed a money receipt and agreement on 8-8-2001. The accused had issued a post-dated cheque drawn in favour of the State Bank of India, Puri Branch. The complainant deposited the same with his Banker, i. e. , Union Bank of India, Balukhanda Branch, Puri-2. That cheque bounced with the remarks of 'insufficient balance' and such intimation was sent to the complainant on 17-10-2001. Soon thereafter the complainant made contact with the accused in presence of two witnesses and the accused expressing financial hardship assured the complainant to make arrangement of funds. Complainant waited for two days but the accused did not turn up nor repaid the loan amount. Thereafter, complainant issued statutory notice under S. 138 of the Act, but it was received back with the endorsement that "no such addressee (at the address ). " Such notices were returned on 3-11-2001 from the State Bank of India, Main Branch and on 15-11-2001 from the residence of the accused at Puri. Thereafter, complainant instituted the complaint on 27-11-2001. ( 3 ) IN course of his examination under S. 200 of the Code of Criminal Procedure, 1973 (in short 'the Code') (otherwise known as initial statement) the complainant stated that he advanced the loan on 8-8-2001, accused executed an agreement to repay the loan within one month and in that respect accused had also issued a post-dated cheque for the self-same amount for collection in case of his default to repay the amount by the due date. Accused failed to repay by the stipulated period and, therefore, complainant deposited the cheque with his banker for encashment but the cheque bounced due to insufficient fund. Accused failed to repay by the stipulated period and, therefore, complainant deposited the cheque with his banker for encashment but the cheque bounced due to insufficient fund. Complainant has further stated in his statement that when he contacted with accused, the latter avoided to repay and, therefore, on 1-11-2001 he sent a notice to the accused demanding for repayment and such letter was issued by speed post. That notice returned undelivered with endorsement of the postal authority as "absent" and "no such addressee in S. B. I. Main Branch. " ( 4 ) ON the basis of the aforesaid averment in the complaint and initial statement of the complainant and the above-noted document, learned S. D. J. M. , Bhubaneswar found existence of a prima facie case for the offence under S. 138 of the Act. Accordingly, he took cognizance of that offence and issued process under S. 204 of the Code against the accused. ( 5 ) ACCORDING to the provision u/s. 138 of the Act, when a cheque issued by the accused for discharge of any debt or other liability is returned by the Bank unpaid, then the drawer of the cheque is liable to be prosecuted for the offence punishable under S. 138 of the Act. ( 5 ) ACCORDING to the provision u/s. 138 of the Act, when a cheque issued by the accused for discharge of any debt or other liability is returned by the Bank unpaid, then the drawer of the cheque is liable to be prosecuted for the offence punishable under S. 138 of the Act. The proviso to S. 138 read with the provision in S. 142 of the Act makes it clear that cognizance of the offence punishable under S. 138 of the Act can be taken only on fulfilment of the following conditions: (I) Accused had issued a cheque to the complainant to discharge any debt or other liability; (ii) the cheque issued by the accused bounced due to insufficiency of fund or because it exceeds the amount arranged to be paid; (iii) such cheque was presented within a period of six months from the date of its issue (from the date on which it was drawn) or within the period of its validity; (iv) the payee or the holder in due course of the cheque makes a demand for the payment by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of information relating to bouncing of the cheque; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or holder in due course of the cheque within 15 days of the receipt of the said notice; and (vi) a complaint in writing is made by the payee or the holder in due course within one month of the date on which period of 15 days, as provided in Cl. (c) of S. 138, expires. ( 6 ) IN course of the hearing of argument there is no dispute on the aforesaid legal position relating to initiation and maintaining a complaint for the offence punishable under S. 138 of the Act. ( 7 ) ACCORDING to the accused/petitioner, the complainant has not made any clear statement relating to the date on which the cheque was presented, and when the intimation was received by the complainant. As per the intimation slip dated 17-10-2001 since the intimation was received on that date, therefore, within 15 days from that date notice should have been issued by 1/11/2001, but such notice was sent on 3-11-2001. As per the intimation slip dated 17-10-2001 since the intimation was received on that date, therefore, within 15 days from that date notice should have been issued by 1/11/2001, but such notice was sent on 3-11-2001. Apart from that, the postal cover available with the Court below indicates that the notice was sent in wrong address and, therefore, that does not amount to sending of notice to the accused, as required under the statute. Above all, according to the accused, when the notice was received undelivered on 15-11-2001 the complainant should have waited for expiry of 15 days from that date before instituting the complaint. But, in this case, such complaint was instituted on 27-11-2001, i. e. , on 13th day including the date 15-11-2001 and 12th day if that date is excluded. Learned counsel for the accused/petitioner, therefore, argues that the order of cognizance is in violation of the provision in S. 142, Cl. (b) read with Cl. (c) of the proviso to S. 138 of the Act. ( 8 ) IN course of hearing on 14-2-2003 while not disputing to the aforesaid legal and factual aspect, learned counsel for the complainant/opposite party argued to set aside the order of cognizance and to remand the case to the Court below. As the accused argues that the complaint was filed prematurely, therefore, this Court wanted to know from the complainant as to under what circumstance the case should be remanded and for what purpose. Learned counsel for the complainant/opposite party sought for adjournments to make further statement relating to the cause of action and the contention in support of remand. He, however, did not adduce any citation nor makes further argument in support of that contention. ( 9 ) THE prayer for remand would have been considered if that would have been helping the parties for advancement of substantial justice. If the complaint was filed prematurely, then a remand would not be able to save that situation. Under such circumstance the prayer for remand is found without any justifiability. ( 10 ) THE admitted position on record being filing of the complaint prematurely, therefore, this Court finds that, that aspect was not at all considered by learned S. D. J. M. On that score only the impugned order of cognizance is liable to be quashed. Under such circumstance the prayer for remand is found without any justifiability. ( 10 ) THE admitted position on record being filing of the complaint prematurely, therefore, this Court finds that, that aspect was not at all considered by learned S. D. J. M. On that score only the impugned order of cognizance is liable to be quashed. Apart from that, it is alleged and substantiated by the accused that the complainant sent the statutory notice deliberately in wrong address and thereafter filed the complaint in a hurry. Therefore, this Court also finds non-service of statutory notice in proper manner. ( 11 ) ACCORDINGLY, the order of cognizance dated 10-12-2001 passed in I. C. C. No. 690 of 2001 of the Court of S. D. J. M. , Bhubaneswar is quashed and the application under S. 482, Cr. P. C. is allowed accordingly. Application allowed.