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2008 DIGILAW 156 (PAT)

Om Prakash Sah v. State Of Bihar

2008-01-23

REKHA KUMARI

body2008
Judgment Rekha Kumari, J. 1. This is an application Under Sec. 482 Cr.P.C. for quashing the order dated 25.7.2006 passed by the learned 2nd Addl. Sessions Judge, Purnea in Cr. Revision No. 188/2005 whereby he has dismissed the revision application filed by the petitioner for setting aside the order of the S.D.J.M., Purnea passed in Complaint Case No. 763/2005 directing issuance of summons against the petitioner. 2. It appears that a complaint case was filed in the court of the Chief Judicial Magistrate, Purnea stating therein that there was brick kiln of the petitioner and he took money as loan from the complainant (O.P. No. 2) . The petitioner issued cheques in favour of the complainant .for payment of the loan. The cheques were presented on 10.3.2005 for payment but they were dishonoured for in sufficient fund. On 1.4.2005 the complainant sent lawyers notice to the petitioner for payment of the amount but nothing was paid. The complainant hence on 10.5.2005 filed the complaint. 3. The learned S.D.J.M. after considering the complaint petition, statement of the complainant on S.A. and the statement of the witnesses examined during enquiry found a prima facie case Under Sec. 420 I.P.C. and 138 of the N.I. Act and directed to issue summons against the petitioner. Being aggrieved by the said order, the petitioner filed criminal revision and the learned Addl. Sessions Judge by the impugned order dismissed the revision. 4. The contentions of the learned Counsel for the petitioner are in two fold. His first contention is that the son of the complainant had committed some crime in which the briefcase of the petitioner was taken away by him and his associates and regarding the said incident a complaint case was filed by the petitioner (Annexure 2) . In the said case cognizance has already been taken and out of vengeance the present case has been filed by the complainant. The other contention of the learned Counsel for the petitioner is that no offence Under Section 420 is made out on the allegations made in the complaint and that the cognizance Under Sec. 138 of the N.I. Act is barred by limitation and hence, the impugned order is fit to be set aside. Counsel for the O.P. No. 2 defended the order. 5. Counsel for the O.P. No. 2 defended the order. 5. As regards the first submission of the learned Counsel for the petitioner, the same is the defence of the petitioner and so, cannot be considered at this stage. 6. Regarding the other submission, it appears from the impugned order that the learned Addl. Sessions Judge has not considered whether any offence Under Section 420 I.P.C. is made out or not on the basis of the allegations made in the complaint petition. As regards the offence Under Sec. 138 N.I. Act, he has observed that as the cause of action arose on 10.3.2005 when the cheques were dishonoured and lastly on 1.4.2005 when the lawyers notice was sent, and the complaint was filed on 10.5.2005, the cognizance was barred under Section 142(b) of the N.I. Act. He, however, further observed that as provided to proviso of Sec. 142(b), if the complainant satisfies the court that there was sufficient cause for not making the complaint within the prescribed period, cognizance may be taken even if the complaint has been filed thereafter and that the learned S.D.J.M. must have considered the explanation for delay before passing his order and so, there was no illegality in the order of the learned S.D.J.M. He accordingly dismissed the revision. 7. In this connection, it may be mentioned at the outset that the cognizance is taken of an offence and not of the offender. The order of the learned S.D.J.M. shows that the case was transferred to him from the court of the Chief Judicial Magistrate Under Sec. 192 Cr.P.C. for enquiry and disposal. It, therefore, appears that the cognizance was taken by the learned Chief Judicial Magistrate and the order of the learned S.D.J.M. has only ordered for issuance of summons under the provisions of Sec. 204 Cr.P.C, the petitioner, however, has not filed the order of the learned Chief Judicial Magistrate to show as to whether he had condoned the delay. Be that as it may, as in the complaint petition there is some explanation for the delay, the learned Addl. Sessions Judge observed that the learned S.D.J.M. must have considered it. But the approach of the learned Sessions Judge is erroneous. There must be a speaking order in condoning the delay in filing a complaint. 8. Be that as it may, as in the complaint petition there is some explanation for the delay, the learned Addl. Sessions Judge observed that the learned S.D.J.M. must have considered it. But the approach of the learned Sessions Judge is erroneous. There must be a speaking order in condoning the delay in filing a complaint. 8. Any way even if the learned Sessions Judge has observed that the complaint was filed beyond the period prescribed Under Sec. 142 (b) of the N.I. Act and the learned Counsel for the petitioner has also submitted that the cognizance Under Sec. 138 was barred on that count, it appears that the learned Addl. Sessions Judge has committed error on this score also. 9. According to proviso (b) of Sec. 138 N.I. Act, the payee is required to give notice in writing within 30 days of the receipt of the information of dishonour of cheque and as per proviso (c), the cause of action for the offence Under Sec. 138 arises as mentioned in Sec. 142(b) if the drawer fails to make payment within 15 days of the receipt of the notice. 10. In this case it is not disputed that the written notice was sent within one month from the knowledge of dishonour of the cheque on 1.4.2005. Learned Counsel for the petitioner in course of hearing also admitted that the petitioner had immediately after receipt of the notice, sent reply on 6.4.2005 refusing to make payment and the complaint was not filed within one month from that date and hence, the cognizance is bad. Learned Counsel, however, has not filed a copy of the reply to show as to when the reply was sent and whether by the said reply he had refused to make payment but even if it be assumed that the petitioner has sent a reply refusing to make payment and the complaint was not filed within one month from the date of refusal, proviso (c) of Sec. 138 reads as follows: The drawer of such cheque fails to make payment of the said amount of money to the drawer 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. The expression the drawer of such cheque fails to make payment is different from the drawer refuses to make payment. The expression the drawer of such cheque fails to make payment is different from the drawer refuses to make payment. Even after refusal, the drawer may make payment. Therefore, it is not necessary for the payee to file complaint within one month from the refusal. He can wait thereafter and can file the complaint within one month of the expiry of 15 days of the receipt of the notice. This view finds support from the decision of the Supreme Court in the case of Pankaj Mehra V/s. State of Maharastra AIR 2000 S.C. 1953 . 11 Therefore, in this case even if it be assumed that the notice sent on 1.4.2005 was received by the petitioner and on that very date the petitioner refused to make payment, the complaint was well within the period of limitation as the same was filed on 10.5.2005, the cognizance Under Sec. 138 N.I. Act hence is not time barred. The allegations also make out an offence Under Section 138 N.I. Act. 12. So when an offence Under Sec. 138 N.I. Act is made out on the allegations made and cognizance in this regard is not barred, whether any offence Under Section 420 I.P.C. is made out or not and in spite of the above erroneous views of the learned Addl. Sessions Judge, I think it would not be proper to allow the application.In the result, the application is dismissed.