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2008 DIGILAW 956 (JHR)

Mama Chandra @ Mam Chand v. State of Jharkhand

2008-08-19

D.K.SINHA

body2008
Order The petitioners have invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashment of the order of cognizance taken under Section 138 of the Negotiable Instruments Act on 20.12.2001 as also against the petitioners by the Chief Judicial Magistrate, Sahibganj in PCR No. 112 of 2001 and the impugned order dated 10.1.2005 passed by the SDJM, Sahibganj dismissing the petition of the petitioners herein filed on 29.9.2004 for stopping their further criminal proceeding. 2. The brief fact of the case as it stands narrated in PCR No. 112 of 2001 is that the Opposite Party No. 2/Complainant Bimla Devi presented the complaint before the C.J.M., Sahibganj narrating inter alia that her son-in-law Vijay Meskara used to live at Jaipur and in course of visit to that place, her husband Shambhu Prasad Agarwal came in contact with the accused AK. Gupta and the latter proposed that his friend Mulchandra Berwa (accused) was having a plot vide No. 108A in Krishna Colony consisting of an area 325 square yards, which could be sold to him at the cheaper rate. The agreement for sale of the land was finalized at Barhet against consideration amount of Rs. 3,10,000/- to which the opposite party No. 2/complainant paid the entire amount to the accused AK. Gupta on different dates, besides, Rs. 40,000/- being the separate amount for raising construction thereon the plot. The complainant alleged that when the construction work started over the land, the police came at the plot and stopped the work on the plea that one Mahabir Prasad Godha claimed that the plot which was sold by the accused persons and thereby cheated the vendee. The accused were arrested and remanded to the judicial custody and later on were released on bail who admitted their guilt. The complainant narrated that the accused A K. Gupta delivered a cheque No. 41518 of Rs. 3,50,000/- on 1.1.2001 to her after he was released on bail but at the same time, he went on requesting her not to tender the cheque as he promised to return the amount in cash yet, before expiry of the period of validity of the cheque, the cheque was presented within six months at Barhet for collection which returned unpaid on 7.6.2001 with the endorsement "insufficient of fund". The complainant being aggrieved then sent a notice on 14.6.2001 under Section 138 of the Negotiable Instrument Act to the accused A.K. Gupta, acknowledgement due to which was received on 19.6.2001 but without any reply from him. Finally it was alleged that the accused Nos. 3, 4 and 5 (including the petitioners) executed a power of attorney in favour of the son-in-law of the complainant in respect of the land in question on 10.10.2000 besides, an agreement duly executed by them on 13.2.2001 and in that manner the accused persons committed offence under Section 420 of the Indian Penal Code and under Section 138 of the Negotiable Instruments Act. 3. After examination of the complainant on solemn affirmation, an enquiry was initiated and the witnesses produced on her behalf were examined under Section 202 of Cr.P.C. Having been satisfied with the materials collected in course of enquiry the learned CJM, Sahibganj having been found prima facie case against all the named accused persons including the petitioners, took the cognizance of the offence under Section 138 of N.1. Act only and summons were directed to be issued against them. 4. The accused persons then appeared in the court below obtained their bail and the petitioners filed a petition on 29.9.2004 for stopping their criminal proceeding which was heard at length and the learned SDJM, Sahibganj by order dated 10.1.2005, rejected their prayer on the ground that the CJM, Sahibganj by his order dated 20.12.2001 after enquiry took cognizance of the offence finding a prima facie case under Section 138 of the Negotiable Instruments Act against them which could not be challenged by the petitioners till then and since there was no fresh material for consideration on the petition of the petitioners, it was rejected. 5. Mr. Rajeeva Sharma, the learned Sr. Counsel pointed out that for the same and similar cause of action the petitioners were made accused in Didya Nagar P.S. Case No. 271 of 2000 for the alleged offence under Sections 420/467/468/471/448/120B of the Indian Penal Code in which they were on bail. Yet, in the instant case though the petitioners were not the drawers of the alleged cheque, they have again been made accused. 6. The short question for consideration in the instant case is as to whether the petitioners under the facts and circumstances are liable for criminal prosecution under Section 138 of Negotiable Instruments Act, 1881? Yet, in the instant case though the petitioners were not the drawers of the alleged cheque, they have again been made accused. 6. The short question for consideration in the instant case is as to whether the petitioners under the facts and circumstances are liable for criminal prosecution under Section 138 of Negotiable Instruments Act, 1881? Admittedly, neither the complainant nor any of her witnesses in course of enquiry has stated that the petitioners had drawn the cheque of Rs. 3,50,000/-. On the other hand, admitted case of the complainant was that the cheque No. 41518 dated 10.1.2001 of Rs 3,50,000/- was exclusively drawn by none other than the accused A.K. Gupta and the petitioners had not even touched the said instrument so as to attract their criminal liability when the cheque was returned unpaid by the Bank. 7. Heard Mr. Rajeeva Sharma, the learned Sr. Counsel for the petitioners and Mr. R.S. Majumdar assisted by Mr. Kaushik Sarkhel the learned counsel for the O.P. No.2. 8. Section 138 of the Negotiable Instruments Act, 1881 deals related to dishonour of cheque for insufficiency, etc. of funds in the account which put personal liability upon the drawer. It is settled that the liability: if accrued under the Act, cannot be fastened on the heir of the drawer or his legal representative who is said to have committed the offence or otherwise under Section 138 of the N.!. Act, for the alleged failure to comply with the notice. Section 138 of the Negotiable Instruments Act speaks. "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such persons shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both." 9. Bare reading of Section 138 of N.!. Act, 1881 depicts that its provision fastens liability only upon the drawer of the cheque for making payment to the drawer or holder in due course in case of its return unpaid by the bank for whatsoever may be the reasons, may be due to insufficiency of amount in the account of drawer to honour the cheque or in case the cheque exceeded the amount arranged to be paid from the account of the drawer. In the instant case I find that the. petitioners were not the drawers therefore, under the provisions of law, they cannot be fastened with the liability for the alleged offence under Section 138 of the Negotiable Instruments Act, though cognizance of the said offence was taken by the CJM, Sahibganj against the petitioners also besides the drawer A.K. Gupta. I find and hold in the circumstances, that the petitioners cannot be criminally proceeded for the said offence and therefore, the order impugned dated 20.12.2001 whereby the cognizance of the offence has been taken is quashed with consequential effect. 10. Accordingly, this Criminal Miscellaneous Petition is allowed.