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Jharkhand High Court · body

2012 DIGILAW 827 (JHR)

D. D. Maheshwari v. State of Jharkhand

2012-06-18

H.C.MISHRA

body2012
Judgment Heard learned counsel for the Petitioner and learned counsel for the respondent State. The respondent No.2, who is the complainant, has not appeared in spite of service of notice upon him twice, once in the admission stage and again in the hearing stage. 2. The petitioner has filed this writ application for quashing the entire criminal proceeding against him in Complaint case No.307 of 2003, then pending before Shri B.B. Gautam, learned Judicial Magistrate, Ranchi, and has also prayed for quashing the order dated 8.1.2004 passed therein by the learned Judicial Magistrate, Ranchi, whereby, the Court below has found sufficient material to proceed against the petitioner under Section 138 of the Negotiable Instrument Act and process was ordered to be issued against the petitioner. 3. The facts of the case lie in short compass. The petitioner was then working as General Manager in M/s. Lemos Cement Ltd, Khalari, where the complainant was an employee. The said complainant was dismissed from service and two cheques were issued by the Company for the amount of Rs. 4138/- and Rs.6150/- , in favour of the complainant, being salary for one month in lieu of notice. It is alleged that the said cheques were deposited in the bank, but the cheques bounced and thereafter in spite of notice, the amount was not paid to the complainant. With these allegations, the complaint petition was filed in the Court below. 4. Learned counsel for the petitioner submitted that the cheques were given to the complainant on 9.4.2003 and the petitioner was intimated about the bouncing of the cheques on 16.4.2003 and soon thereafter, the petitioner got the demand drafts of the said amounts deposited in the bank account of the complainant on 19.4.2003, which was well within the statutory period. Learned counsel accordingly, submitted that the continuance of the criminal proceeding against the petitioner in the said complaint case No.307 of 2003 is absolutely illegal and even the order passed therein on 8.1.2004, finding sufficient material against the petitioner for proceeding under Section 138 of N.I. Act, was also absolutely illegal and fit to be quashed. 5. Learned counsel accordingly, submitted that the continuance of the criminal proceeding against the petitioner in the said complaint case No.307 of 2003 is absolutely illegal and even the order passed therein on 8.1.2004, finding sufficient material against the petitioner for proceeding under Section 138 of N.I. Act, was also absolutely illegal and fit to be quashed. 5. It appears that in the admission stage itself, notice was issued to the complainant respondent No.2 and though the notice was served upon the respondent, he chose not to appear and accordingly, by order dated 14.7.2006, this application was admitted, the proceeding against the petitioner in connection with the said Complaint Case No.307 of 2003 was stayed and a fresh notice was also ordered to be issued against the respondent No.2 in the hearing matter, which was again validly served, but still the respondent No.2 has not appeared in the case. 6. Learned counsel for the petitioner submitted that in view of the fact that the petitioner had already deposited the demand drafts in the bank account of the complainant, the proceeding against the petitioner in complaint case No.307 of 2003 is fit to be quashed. Learned counsel has drawn the attention of this Court towards paragraph 13 of the writ application wherein there is statement on affidavit that the petitioner had got the drafts prepared and the same were deposited in the bank account of the complainant on 19.4.2003. The petitioner has also drawn the attention of this Court towards the intimation given by the bank by letter dated 7.8.2004 informing that the demand drafts were deposited in the account of drawee, which has been brought on record as Annexure – 2/5. Learned counsel accordingly, submitted that proceeding against the petitioner cannot be continued in the eyes of law. 7. Learned counsel for the State-respondent opposed the prayer. 8. Having heard learned counsels for both the sides and upon going through the record, I find that the complainant has not appeared in the case in spite of service of notice upon him twice, probably as he was an employee of the cement factory and he was dismissed from service. It also appears that the petitioner has brought on record the document issued by the Bank to show that the said amount was deposited in the bank account of the complainant, and the statement to this effect has also been made on affidavit. It also appears that the petitioner has brought on record the document issued by the Bank to show that the said amount was deposited in the bank account of the complainant, and the statement to this effect has also been made on affidavit. It is thus apparent that the complainant has filed this case against the petitioner with mala fide intention and oblique motive to unnecessarily harass the petitioner, and has not appeared in this case in spite of service of notice upon him twice. 9. Accordingly, In my considered view, the impugned order dated 8.1.2004 passed by Shri B.B. Gautam, learned Judicial Magistrate, Ranchi, in Complaint case No.307 of 2003, as also the entire proceeding against the petitioner in the said complaint case No.307 of 2003 cannot be continued in the eyes of law and accordingly, the same are hereby, quashed. This application is accordingly allowed.