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2006 DIGILAW 306 (ORI)

Sundeep Gupta v. Manoranjan Nayak

2006-04-20

A.S.NAIDU

body2006
JUDGMENT A. S. NAIDU, J. : Heard Mr. Pattajoshi, learned counsel for the petitioner and Mr. Mishra, learned counsel for the opposite party. 2. Invoking inherent jurisdiction under Section 482 Cr.P.C. the petitioner who is the Director of M/s. Konark Concast and Power Limited, a Company registered under the Companies Act, 1956, has approached this Court with a prayer to quash further proceedings of complaint case being ICC No.1564 of 2005 pending in the Court of learned S.D.J.M., Bhubaneswar and also to set aside the order dated 5th July, 2005 passed by the said Court taking cognizance of offence under Section 138 of Negotiable Instruments Act (in short the “N.I. Act”) 3. The said complaint case was registered on the basis of a complaint petition filed on behalf of M/s. Global Experts as complainant. It is alleged that a contract was entered into between the petitioner and opposite party concerned, inter alia, agreeing that the opposite party would render help and service to the petitioner in submitting an application before the District Magistrate/Collector, Sundargarh for obtaining mining lease and licence to extract iron ore from a specified area. According to the agreement, it is submitted, an onerous duty was cast upon the opposite party to help the petitioner to procure the aforesaid mining lease. In lieu of such help it is submitted that the petitioner was required to pay a sum of Rs.35,00,000.00 The oppo¬site party further alleged in the complaint petition that while executing the agreement the petitioner accused issued a cheque drawn on City Bank, New Delhi for a sum of Rs.35,00,000.00 for the service render by it. It is stated that according to the terms of the agreement the opposite party performed its part of the contract and the petitioner reaped the benefit out of it. But then when the opposite party presented the cheque in consonance with the terms of the agreement it bounced. Consequently the complaint petition was filed alleging commission of an offence under Section 138 of N.I. Act and the Court below, it is submit¬ted, after going through the documents and other statements and on being prima facie satisfied that materials were available as to commission of an offence under Section 138 of N.I. Act took cognizance thereof and issued process against the petitioner by the impugned order. 4. According to Mr. 4. According to Mr. Pattajoshi, the Court below has not properly appreciated the materials available and the order of cognizance is otherwise contrary to law. It is submitted that the opposite party having failed to fulfil his obligations, which he was otherwise required to perform in consonance with the terms of the agreement, he was not entitled to the amount specified in the cheque and thus the petitioner was not required to pay any amount to the opposite party. It is further submitted that the complaint case has not been filed by proper person and should not have been entertained inasmuch as the opposite party has completely failed to perform his part of the obligations in tears of the aforesaid agreement. It is further submitted that a perusal of the com¬plaint petition would reveal that the dispute in question is more of civil in nature and as none of the ingredients for commission of offence under Section 138 of N.I. Act are satisfied, the complaint petition ought to have been rejected at the very threshold. Several other grounds are also raised with regard to the maintainability of the proceeding mainly on the ground that the opposite party has no locus standi to file the complaint petition. Mr. Pattajoshi further submitted, rather forcefully, that perusal of the agreement and other materials would clearly reveal that the dispute, if any, has to be adjudicated in a civil Court and filing the present proceeding amounts to hand twisting. Mr. Pattajoshi drew attention of this Court to different terms of the contract and submitted that the petitioner was not required to pay any amount and filing of the complaint case was miscon¬ceived one. 5. These submissions are strongly repudiated by the learned counsel appearing for the opposite party. It is submitted that all the ingredients of Section 138 of the N.I. Act are satisfied. It is further submitted that before filing the complaint petition the opposite party sacrosanctly followed the requirements stipulated under the N.I. Act. Thus any submissions to the contrary are unfounded. According to the learned counsel for the opposite party, issuance of the cheque for the required amount being admitted the basic ingredients of Section 138 of N.I. Act were satisfied and the Court below has rightly taken cognizance. 6. I have heard learned counsel for the parties at length. Thus any submissions to the contrary are unfounded. According to the learned counsel for the opposite party, issuance of the cheque for the required amount being admitted the basic ingredients of Section 138 of N.I. Act were satisfied and the Court below has rightly taken cognizance. 6. I have heard learned counsel for the parties at length. Though several points are argued, at this stage it would not be prudent to discuss the inter se controversies as the same may cause prejudice to the parties and amount to prejudging the issues. Admittedly the cheque was issued by the petitioner con¬cerned. According to the learned counsel for the opposite party-complainant, the same was presented and as the cheque bounced a complaint case was filed. The Court below after being prima facie satisfied with the averments made in the complaint petition and after following the provisions stipulated in the Criminal Proce¬dure Code has taken cognizance of the offence. Thus no illegality has been committed. Law is well settled that under Section 190 of the Criminal Procedure Code the cognizance is taken of the of¬fence and not of the offender and therefore one the Court on perusal of the complaint was satisfied that the allegations disclosed commission of an offence there was no reason to reject the complaint at the threshold, and proceed further in the mat¬ter. It must be held to have taken cognizance of the offence. As has held by the Supreme Court in the case of Ajit Kumar Palit v. State of West Bengal reported in (1963) Supp. 1 SCR 953, the word “cognizance” has no esoteric or mystic significance in criminal law or procedure. It merely means become aware of and when used with reference to a Court or Judge, to take notice of judicially. In the case of Gopal Marwari v. Emperor reported in AIR 1943 Patna 245, the Patna High Court has observed that the word “cognizance” was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. It is observed in the case of Emperor v. Sourindra Mohan Chukerbutty reported in (1910) ILR 37 Cal. It is observed in the case of Emperor v. Sourindra Mohan Chukerbutty reported in (1910) ILR 37 Cal. 412 that “taking cognizance does not involve any formal action : or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence. “Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken obviously the statutory requirement must be fulfilled.” Law is well settled that at the stage of taking cognizance under Section 190 Cr.P.C. the cognizance taking Magistrate is only required to peruse the averments made in the complaint petition, the statement of the complainant recorded and if prima facie satisfied that an offence has been committed pass necessary orders in consonance with Section 190 Cr.P.C. At that stage the Magistrate is not required to give an opportunity to the opposite party accused and/or to consider any other materials which are not available in the record. 7. That apart a reading of Section 138 of N.I. Act leaves no doubt in mind that the circumstances under which a cheque is dishonoured have no nexus with the commission of the alleged offence. Whether the amount payable under the cheque is debt or liability is a question of fact which has to be gone into in course of trial only. The other submission with regard to locus standi of the complainant to file the complaint petition is available to be taken by way of defence and cannot be considered at the tie of taking cognizance. In the instant case the opposite party had filed detailed complaint before the Magistrate. The record shows that the Magistrate after due application of mind to the averments made in the complaint petition and the statements recorded, took cognizance of the offence under Section 138 of N.I. Act. As has been stated earlier at that stage the Magistrate is not required to transgress beyond the complaint petition and the statement recorded and thus the Court below has not committed any illegality or infirmity. The submissions made by the peti¬tioner are more in the nature of defence available to him. The same can braised at the relevant stage in course of trial and were not required to be considered at the time of cognizance. The submissions made by the peti¬tioner are more in the nature of defence available to him. The same can braised at the relevant stage in course of trial and were not required to be considered at the time of cognizance. After perusal of the complaint petition and other materials, this Court is also prima facie satisfied that basic ingredients of Section 138 of N.I. Act are satisfied. Thus the Court below has not committed any illegality or infirmity. At this juncture it cannot be said that prima facie case was not made out. The Court below has rightly taken into consideration of the facts and circumstances and has taken cognizance of the offence. I do not find any infirmity in the impugned order and I decline to inter¬fere with the same. But then I dispose of this case granting liberty to the petitioner to raise all his submissions at the relevant stage of the trial. Case disposed of.