Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 727 (JHR)

Dulal Chakraborty v. State Of Jharkhand

2006-06-20

DILIP KUMAR SINHA

body2006
JUDGMENT D.K. Sinha, J. 1. The petitioner, Dulal Chakraborty, has preferred this petition under Section 482 of the Code of Criminal Procedure for quashing the order passed by the Judicial Magistrate, Ranchi in Complaint Case No. 972 of 2004 on 1.3.2005 whereby and whereunder the cognizance of the offence was taken under Section 138 of the Negotiable Instrument Act, 1981 (Hereinafter to be referred as the "Act") against the petitioner and he was put on trial. 2. The brief fact of the case is that the petitioner as well as the opposite party No. 2, Chaitali Dutta, entered into an agreement to start a business for supply of Chemicals Equipments and Appliances on the terms and conditions settled between them and pursuant to that partnership deed was executed to carry on the business at Royal Choice Collections Shop No. 3, Laxmi Market, Lalpur, Ranchi. It was agreed between the parties that the first party/ opposite party No. 2 would deposit a sum of Rs. 1.50 lakhs whereas second party/petitioner will be engaging himself for acquiring jobs and orders for supplying chemicals and appliances. The profit and loss was agreed to be shared equally besides other conditions mentioned in the deed of partnership. It would not be out of place to mention that the petitioner herein was the second party to the partnership deed of the firm M/S Unisales Scientific Suppliers whereas the opposite party No. 2-complainant was the first party and that share in the business would be fifty- fifty. 3. In terms of the partnership deed it is alleged that the second party reqaested the first party/opposite party No. 2 from time to time to invest capital and pursuant to that the opposite party No. 2 paid a total sum of Rs. 2,61,500/- in cash to the petitioner on different dates for the business purpose. The partnership deed was amended on 3.3.2004 by mutual agreement to increase the amount of capital to be invested by the first party to the tune of Rs. 3.0 lakh (Ext.2), it is alleged that when the first party/opposite party No. 2 put forth the demand for repayment of the said amount of Rs. 2,61,500/- the second party-petitioner issued three cheques in the manner stated below drawn on his bankers, Indian Overseas Bank, Ranchi and handed over the same to the first party-opposite party. 2. 3.0 lakh (Ext.2), it is alleged that when the first party/opposite party No. 2 put forth the demand for repayment of the said amount of Rs. 2,61,500/- the second party-petitioner issued three cheques in the manner stated below drawn on his bankers, Indian Overseas Bank, Ranchi and handed over the same to the first party-opposite party. 2. Cheque No & Date Amount Payee of the Cheque 991342, datcd 5.4.2004 Rs. 40,000/- self 991341, dated 5.4.2004 Rs. 31,500/ self 589598, dated 5.3.2004 Rs. 1,90,000/- Chaitali Dutta (First party) 4. All the three cheques were presented by the opposite party No. 2 in Indian Overseas Bank, Ranchi but all three were dishonoured and returned to the opposite party No. 2 with the advice that there was no sufficient fund in the account of the petitioner-second party. It is alleged that the petitioner-second party was informed orally on 12.8.2004 and 20.8. 2004 about the dishonour of the said cheques issued by him and demand was made by the first party/opposite party No. 2 for payment of Rs. 2.61,500/-. In the same sequence the Opposite party No. 2 got a legal notice served on the petitioner on 1.9.2004 by registered post for payment of the said amount and also claimed an interest thereon @24% per annum. The petitioner refused to receive the notice and therefore, it was returned by the post office to the advocate of the opposite party No. 2. The learned Chief Judicial Magistrate, Ranchi after finding a prima facie case took cognisance of the offence under Section 138 ol the said Act against the petitioner herein in the complaint filed on behalf of the opposite party No. 2/first party of the partnership deed 5. Learned Counsel appearing for the petitioner submitted that the impugned order is fit to be quashed as the prosecution case was not launched as per requirement of Section 142(b) of the Act whereby and whereunder it has been made clear that 15 days notice should be given to the person by whom the cheques were issued and it were dishonoured. The criminal prosecution may be launched within one month of the expiry of 15 days from the issuance of the notice as provided by Section 142(b) of the said Act. The criminal prosecution may be launched within one month of the expiry of 15 days from the issuance of the notice as provided by Section 142(b) of the said Act. It is further submitted that Clause (c) of Section 138 of the said Act envisages that drawer of the cheque after receiving the notice about dishonour of the cheque has to make payment within 15 days from the date of the receipt of the notice of demand issued under Clause (b) of Section 138 of the said Act by the holder of the cheque and cause of action accrues only after the expiry of the said period of 15 days. Therefore, the complaint be filed within one month from the date when the cause of action arose. Learned Counsel pointed out that legal notice was served on the accused- petitioner on 1.9.2004 but the complaint was filed on 8.10.2004 i.e after expiry of 38 days of the service of legal notice and in this manner the mandatory provision of law as laid down under Section 142(b) as well as 138(c) of the said Act was not followed and therefore, cogni/ance taken by the Chief Judicial Magistrate, Raneni in the present case is illegal, without jurisdiction and is lit to be set aside. Reliance has been placed on the decision of Mozaffar Alam Ansari @ M.A. v. State of Jharkhand and Anr. reported in 2004(4) JLJR 331 , On the receipt of the notice the opposite party No. 2 appeared through Vakalatnama on 24.2.2006 and her learned Counsel was directed to seek instruction and to file counter affidavit. But from the office note it appears that no counter affidvavit has been filed on behalf of the opposite party No. 2. It would be not out of place to mention that it was observed by a Bench of this Court in the present case on 8.12.2005 and to quole: If the petitioner deposits a sum of Rs. 2,61,500/- by way of locally payable Demand Draft in favour of opposite party No. 2 by 23rd December, 2005, further proceedings in complaint Case No. 972 of 2004, pending in the court of Shri A.K. Tiwar, Judicial Magistrate, Ranchi shall remain stayed. Opposite party No. 2 will be entitled to withdraw the said amount without prejudice. Put up this case for admission before an appropriate Bench on 30th January, 2006. Opposite party No. 2 will be entitled to withdraw the said amount without prejudice. Put up this case for admission before an appropriate Bench on 30th January, 2006. But there is no material on the record in support of the fact that the petitioner has ever deposited the said amount and the same in pursuance to the above observation was received by the opposite party No. 2. 6. In case of dishonoured of the cheque the penal provision as well as procedure has been envisaged under Section 138 of the said Act as contained in Chapter XVII of the Act but there are certain provisos of the said Act as follows: (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the, holder in due course of the cheque, as the case may be , makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, {within thirty days} of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and. (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 7. By bringing about amendment of the amending Act of 2002 tenure of punishment was increased and at the same time the period for issuance of notice by the payee to the drawer was increased from 15 days to 30 days on the dishonour of cheque. 8. Similarly certain provision has been laid down under Section 142 of the said Act whereby and whereunder certain amendment was made by Amending Act of 2002. Section 142 was amended to provide diseretion to the court to waive the period of one month, which has been prescribed for taking cognizance of the case under the Act (Amendment Act of 2002). Section 142 of the Act relates to cognizance of the offence which speaks as here under: 142. Section 142 was amended to provide diseretion to the court to waive the period of one month, which has been prescribed for taking cognizance of the case under the Act (Amendment Act of 2002). Section 142 of the Act relates to cognizance of the offence which speaks as here under: 142. Cognizance of offenccs.-Notwithstandmg anything contained in the Code of Criminal Procedure,1973(2 of 1974)- (a) no court shall take cognisance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee, or as the case may be , the bolder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 : {provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period}. no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try to any offence punishable under Section 138. 9. It is gathered from the complaint case that two cheques of Rs. 40.000/- and Rs. 31,500/- were issued by the petitioner on 1.5.2004 whereas the cheques of Rs. 1,90,000/- was issued on 5.3.2004 which were presented hy the opposite party No. 2 but dishonoured by the Indian Overseas Bank and advice in respect of the dishonour of the cheques were issued. The complaint petition is silent as to on which date cheques were presented before the Bankers but it is clear that cheques were presented within six months on the receipts and were dishonoured. The legal notice was served on 1.9.2004 through rcgislcrcd posts and it has been admitted by the petitioner as contained in para-7 of the petition. 10. The complaint petition is silent as to on which date cheques were presented before the Bankers but it is clear that cheques were presented within six months on the receipts and were dishonoured. The legal notice was served on 1.9.2004 through rcgislcrcd posts and it has been admitted by the petitioner as contained in para-7 of the petition. 10. Section 138(b) of the said Act speaks that payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by, giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding return of the cheque as unpaid and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within 15 days of the receipt of the said notice. 11. In view of the above provision of law, time of 15 days is required to be given to the drawer of cheque for payment and limitation of 30 days for filing complaint as contained in Section 142(b) of the said Act starts only after completion of 15 days given to the drawer for repayment Admittedly, the notice was served upon the petitioner on 1.9.2004 and the limitation to make payment by the petitioner to the opposite party No. 2 continued up to 16.9.2004 under Section 138(c) of the Act and from that date the limitation of one month started for filing the complaint as contained in Section 142(b) of the Act. Admittedly, the complaint case was filed on 8.10.2004 within the period of limitation and hence it cannot be held that the complainant petition is time barred. 12. There being no merit in this petition, the impugned order does not require interference, this petition is dismissed.