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2007 DIGILAW 667 (ORI)

Gangadhar Behera v. State of Orissa

2007-08-31

PRADIP MOHANTY

body2007
JUDGMENT PRADIP MOHANTY, J. : The petitioner in this revision has questioned the legality of the order dated 27.03.2006 passed by the learned S.D.J.M., Angul in C.T. Case No.508 of 2006 taking cognizance of the offence under Section 138 of the Negotiable Instruments Act. 2. Brief facts of the case are that opposite party No.2, as complainant, instituted a complaint case against the present petitioner before the learned S.D.J.M., Angul, which was regis¬tered as C.T. No.508 of 2006. In the said complaint petition, the complainant alleged that on the request and assurance of the accused-petitioner to refund the amount by 06.01.2006, he gave a sum of Rs.1,00,000/- to him on 06.12.2005 for development of his jewelary workshop at College Square, Angul. The accused-petitioner did not pay back the amount despite several requests of the complainant. At last, he issued a cheque bearing number 010703 for Rs.1,00,000/- drawn on the U.T.I. Bank Ltd., Angul Branch, Angul in favour of the complainant to discharge his liability. As per instruction of the accused-petitioner, the complainant pre¬sented the aforesaid cheque with his banker, i.e., Union Bank of India, Angul Branch, Angul on 27.2.2006 and on the same day the bank returned the same with the remarks “In-sufficient Funds” in the account of the accused-petitioner bearing No.288010-100011857. On 01.03.2006, the complainant sent a notice through his lawyer demanding payment of Rs.1,00,000/- within 15 days from the date of receipt of the said notice, since the cheque was dishonoured, but to no avail. Ultimately, the complaint was lodged on 21.03.2006 and the S.D.J.M. took the cognizance on 27.03.2006. 3. Learned counsel for the petitioners submits that the impugned order taking cognizance is illegal inasmuch as the same is against the materials on record and the learned S.D.J.M. has not applied her mind while taking cognizance. The allegations contained in the complaint petition do not satisfy the ingredi¬ents of Section 138 of the N.I. Act. She lastly contended that no notice was served on the accused-petitioner within the period of 15 days. 4. Learned counsel for opposite party No.2 submits that there is a prima facie case against the accused-petitioner under Section 138 of N.I. Act and the learned Magistrate has rightly taken cognizance. He further submits that the cheque was present¬ed on 27.02.2006 and the same was dishonoured on the very same day. 4. Learned counsel for opposite party No.2 submits that there is a prima facie case against the accused-petitioner under Section 138 of N.I. Act and the learned Magistrate has rightly taken cognizance. He further submits that the cheque was present¬ed on 27.02.2006 and the same was dishonoured on the very same day. The notice was issued on 01.03.2006, receipt of the same was duly acknowledged on 04.03.2006 and the complaint petition was presented on 21.03.2006. Therefore, it cannot be said that the notice was not served within the stipulated time. 5. Perused the records and considered the submissions made by the parties. For the purpose of taking cognizance of the of¬fence under Section 138 of the N.I. Act, the Court is to apply its mind with regard to issuance of cheque, presentation of cheque, dishonour of the cheque, service of statutory notice on the person concerned and non-compliance or non-payment in pursu¬ance of the notice within 15 days of the receipt of the notice. In the instant case, the cheque was presented on 27.02.2006 before the bank, and it was dishonoured on the ground of insuffi¬ciency of fund and communicated to complainant-opposite party No.2 on that day itself. On 01.03.2006, the notice of demand was issued by registered post with A/D through the lawyer and the same was acknowledged on 04.03.2006. Due to non-payment of the dues, the complaint petition was filed on 21.03.2006. Therefore, all the ingredients of Section 138 of the N.I. Act for the pur¬pose of taking cognizance have been satisfied and so there is no illegality in the impugned order. 6. For the reasons stated above, this Court is not in¬clined to interfere with the impugned order. The revision being devoid of any merit is dismissed. Revision dismissed.