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2005 DIGILAW 994 (PAT)

Lakshmi Kant v. State Of Bihar

2005-11-18

NAVIN SINHA

body2005
Judgment 1. Heard learned Counsel for the petitioner and the learned Counsel for the State as also the learned Counsel appearing on behalf of opposite party no. 2. 2. The petitioner would be aggrieved by the order of cognizance dated 21.5.2002 as also the proceeding in Complaint Case No. 686(C) of 2002 pending before the Judicial Magistrate, 1st Class, Patna under section 138 of the Negotiable Instruments Act read with Section 420 of the Penal Code. 3. The short facts to be noticed would be that for hire charges of a vehicle the petitioner would have given a cheque on 15.12.2001 for a sum of Rs. 15,000/-which would have been deposited by the complainant in the bank on 7.1.2002 when he would have learnt of its being dishonoured due to insufficient fund on 9.1.2002. A notice would then have been sent to the petitioner on 11.1.2002 under Section 138(b) of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). The present complaint would then have been filed on 19.4.2002. 4. Learned Counsel appearing for the petitioner submitted that in terms of Section 142(b) read with Section 138(c) of the N.I. Act the complaint was to be initiated within one month from the date the cause of action would arise under Section 138(c) of the N.I. Act meaning thereby 15 days after the notice sent under Section 138(b) of the N.I. Act was received by the petitioner. It is submitted that though notices would have been sent within the requisite period under Section 138(b) of the N.I. Act the complaint would be completely silent with regard to the date on which notices would have been served on the petitioner. It is submitted that the satisfaction with regard to the limitation would have been a necessary condition of law before the cognizance could have been taken. In absence of necessary pleadings in this regard in the complaint the cognizance would be vitiated. In the alternative, it is submitted that in any event in absence of necessary pleadings in this regard the notice which was sent on 11.1.2002 would bo deemed to have been served on expiry of 30 days i.e. by 10th February, 2002. The normal presumption in law for service of a registered letter. He therefore submits that the complaint could well have been initiated within 30 days thereafter also meaning thereby till 10.3.2002. The normal presumption in law for service of a registered letter. He therefore submits that the complaint could well have been initiated within 30 days thereafter also meaning thereby till 10.3.2002. In the present case, the complaint would have been filed on 19.2.2003 clearly beyond the period of limitation. He relied on a judgment of this Court reported in 2000(1) PLJR 222 (Chandan Kumar V/s. State of Bihar & Anr). 5. It is next submitted that in any event the value of the dishonoured instrument being Rs. 15,000/- would have already been paid subsequently to the complainant. Learned Counsel submits that by virtue of Section 147 of the Amendment Act of Negotiable Instruments Amendment and Miscellaneous Provisions Act, 2002 the offence would now have been made compoundable. He lastly submits that in a prosecution initiated under Section 138 of the N.I.Act there would not be any essence of applicability of the provisions of Section 420 of the Penal Code. The complaint would not allege any dishonest intention to cheat at the inception when the cheque would have been served. It is submitted that in the facts and circumstances of the case, the petitioner would also in fact have tendered the entire value of the dishonoured instrument and hence there would be no applicability of Section 420 of the Penal Code. He placed reliance for the purpose upon a judgment of the Karnataka High Court reported in 2002 DCR (Dishonour of Cheque Reporter) 18(Nemichand Swarupchand Shaha V/s. M/s T.H. Raibhagi Firm). 6. Learned Counsel for the complainant while acknowledging receipt of the amount in question would submit by placing reliance on a judgment of the Supreme Court reported in (2001)1 SCC 631 (Rajneesh Aggarwal V/s. Amit J. Bhalla) that mere payment of the value of dishonoured instrument would not absolve the liability for prosecution and the payment may at best be a mitigating circumstance while considering the punishment. 7. This Court would have considered the submissions made on behalf of the parties. The salient aspect of the case would be a transaction for a sum of Rs. 15,000/- only. The genesis would be hiring of a vehicle. The payment would have subsequently been made to the complainant. The offence under Section 138 of the Act would have been made compoundable by the Negotiable Instruments Amendment and Miscellaneous Provisions Act, 2002 by addition of Section 147 which would read as under: "147. 15,000/- only. The genesis would be hiring of a vehicle. The payment would have subsequently been made to the complainant. The offence under Section 138 of the Act would have been made compoundable by the Negotiable Instruments Amendment and Miscellaneous Provisions Act, 2002 by addition of Section 147 which would read as under: "147. Offence to be compoundable.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable." 8. The judgment in Rajneesh Aggarwal (supra) relied upon by the learned Counsel for the opposite party no. 2 would have been rendered prior to the aforesaid amendment. 9. This Court would also record that in view of the given nature of the allegations and subsequent payment made by the petitioner, the allegations under Section 420 of the Penal Code appear to be inapplicable and ornamental in nature. 10. In the facts and circumstances of the case, considering the entirety of the matter as discussed above, this Court is satisfied that to permit the present prosecution to continue would clearly be an abuse of the process of law. The entire proceeding against the petitioner in Complaint Case No. 689(C) of 2002 and the order of cognizance dated 21.5.2002 pending before Shri Manoj Kumar Singh, Judicial Magistrate, 1st Class, Patna is accordingly quashed. 11. This application is accordingly allowed.