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2012 DIGILAW 850 (CAL)

Pronoy Kanti Datta v. Tripti Saha

2012-09-12

RAGHUNATH BHATTACHARYA

body2012
JUDGMENT Raghunath Bhattacharya, J. 1. This appeal is directed against the judgement and order of acquittal passed by H. Singh in C. Case No. 1584 of 2004 under Section 138 of N.I. Act acquitted the accused Tripti Saha under Section 255(1) Cr.P.C. 2. Shortly put the petitioner’s case is that on 27.05.2004 the partnership firm between the complainant and the accused person was dissolved by a deed of partnership by mutual consent and as a result of which a sum of Rs.65,500/-was to be paid to the complainant by the accused person. Accused person issued four cheques in favour of the complainant in between 28.10.2004 to 30.01.2005. Out of which three cheques of Rs. 16,000/-and one of cheque of Rs. 17,500/-on 30.11.2006 complainant presented cheque No. 642067 dated 30.11.2004 of Rs. 16,000/-to the bank and said cheque was returned with the endorsement insufficient of fund. The complainant gave a lawyer notice to the accused person to pay the amount within fifteen days from the date of the notice but the same letter was returned with the endorsement ‘refused’. Thereafter the complaint submitted that accused committed offence under Section 138 of N.I. Act. Hence the present case. 3. The defence case as it appears from the trend of the cross-examination of the prosecution witnesses and the answer given by the accused person to their respective examination under Section 313 Cr.P.C. is that of absolute innocence. However, the factum of issuance of cheque by the accused for the discharge of the liability is admitted position of this case. The accused simply bank open her case that the complaint was requested by letter dated 06.120.2004 not but present the cheque within three months from the date of issuance of notice. The only point for consideration is whether accused person committed any offence under Section 138 of the act or not. 4. It is undisputed that accused Tripti Saha issued a cheque No.642067 dated 30.11.2004 of Rs. 16,000/-in favour of the complainant drawn on Bank of Baroda, Belghoria Branch. The said cheque was duly presented by the complainant to U.B.I. Hridaypur Branch on 30.11.2004 but the said cheque was not cleared and returned with a note ‘insufficient of fund’. 4. It is undisputed that accused Tripti Saha issued a cheque No.642067 dated 30.11.2004 of Rs. 16,000/-in favour of the complainant drawn on Bank of Baroda, Belghoria Branch. The said cheque was duly presented by the complainant to U.B.I. Hridaypur Branch on 30.11.2004 but the said cheque was not cleared and returned with a note ‘insufficient of fund’. In addition to this for dishonour of the cheque in question complainant made a demand for the payment of the amount of the dishonoured cheque by giving notice in writing through his lawyer within the prescribed period by sending notice under registry post. But same was refused. Therefore, it may be safely concluded that notice of demand dated 02.12.2004 was served upon the complainant on 13.12.2004 and the instant case was filed on 24.12.2004. From the perusal of the evidence and the judgement of the Lower Court it appears that petition of complaint was filed pre-matured after completion of 11 days only whereas the cause of action for presentation of the complainant would arise after completion of 15 days from the date of received of notice and failed to pay the amount within that period. 5. Therefore, both the learned lawyer for the petitioner Mr. Anirban Mitra as well as learned counsel for the respondent contended that the mandatory provisions of 138 and 142 of the N.I. Act has not been complied with and, therefore, according to the learned Counsel for the accused Tripti Saha learned Trial Court has correctly rejected the petition of complaint, whereas it was the contention of the learned Counsel for the appellant that when the Court has taken the cognizance and issue summon upon the accused person so it can be safely concluded that statutory notice for fifteen days has already been waived by the Court below and learned Trial Court has* made a mistake by passing an order of a acquittal against the accused person. It was submitted that it is the duty of the learned Trial Court to wait for fifteen days and thereafter Trial Court should take cognizance and issue summons and the appellant should not suffer due to the mistake committed by the learned Trial Court. 6. It was submitted that it is the duty of the learned Trial Court to wait for fifteen days and thereafter Trial Court should take cognizance and issue summons and the appellant should not suffer due to the mistake committed by the learned Trial Court. 6. It is submitted that the appellant that complaint was filed on the eleven days instead of fifteen days of statutory period and the learned Trial Judge acquitted the accused on the ground of premature filing of the complaint. It is argued by the learned Counsel appearing for the appellant that defence never raised this point of premature filing in the Trial Court and requested the complainant to present cheque after three months. To substantiate the case learned Lawyer for the appellant referred to three decisions reported in (2009) 2 C Cr. L.R. Cal 168 and (2007) 2 C Cr. L.R. Cal 361 both the judgements were passed by Single Bench of this High Court. Both the Hon’ble Single Judge mainly rely upon a judgement of Hon’ble Apex Court reported in AIR 2000 Supreme Court 2946 where it was held that mere presentation of the complaint in the Court cannot be held to mean that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to be complaint for filing later and its mere necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. The failure of drawer of cheque to make payment of the cheque within 15 days of Court to entertain a complaint. Clause (b) of Section 142 prescribes a period within which the complaint can be filed from the date of the cause of action arising under clause (c) of the proviso to Section 138 . It is argued that in the instant case the complaint for the dishonour of cheque filed before the expiry of notice period was returned after finding defect in it. It is also decided by the Apex Court in the aforesaid judgement it was improper to hold that on the date the complaint was presented and returned by the Court on finding that verification was not signed by Counsel the court took cognizance. It is also decided by the Apex Court in the aforesaid judgement it was improper to hold that on the date the complaint was presented and returned by the Court on finding that verification was not signed by Counsel the court took cognizance. The further conclusion that since the complaint was premature it was liable to be dismissed was based upon wrong presumption of law and fact and was also liable to be set aside. 7. Learned Lawyer for the appellant referred to the decision reported in AIR 200 Supreme Court 2946 and two judgements of this Court reported in (2009) 2 C Cr. LR. Cal 168 and (2007) 2 C Cr. LR Cal 361 it was decided in the Apex Court “the compliance of Clause (c) of proviso to Section 138 enables the Court to entertain a complaint. Clause (b) of Section 142 prescribed a period within which the complaint can be filed from the date of the cause of action arising under Clause (c) of proviso to Section 138. No period is prescribed before which the complaint cannot be filed and if filed not disclosing the cause of action in terms of Clause (c) of the Proviso to section 138, the court may not take cognizance till the time the cause of action arises to the complainant. Taking cognizance of an offence by the court has to be distinguished from the filing of the case by the complainant. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of offence regarding which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown, that he has applied his mind to the fact for the purpose of proceeding further in the matter at the instance of the complainant. The principle enunciated by Hon’ble Apex Court has been followed by the two decisions referred above by Hon’ble High court. It was decided in a decision reported by the Hon’ble High court the compliance of Clause (c) of Proviso to Section 138 enables the Court to entertain the complaint. Clause (b) of Section 142 prescribes a period within which the complaint can be filed from the date of the cause of action arising under clause (c) of the proviso to Section 138. Clause (b) of Section 142 prescribes a period within which the complaint can be filed from the date of the cause of action arising under clause (c) of the proviso to Section 138. No period is prescribed before which the complaint cannot be filed and if filed not disclosing the cause of action in terms of Clause (c) of proviso to Section 138, the Court may not take cognizance till the time the cause of action arises to the complainant. 8. I am of the opinion that the judgement of the Trial Court has not discussed all possible points which can be taken in a case under Section 138 of N.I. Act. Learned Trial Court has dismissed this case only on the point of notice. I think that this is a fit case where it should be remained to the Court below with a direction to the learned Trial Judge to discussed each and every possible points raised by both sides even they should offered opportunity for adducing evidence if prayed for. 9. In view of the aforesaid discussion the appeal stands allowed. The judgement passed by t he learned trial Court is hereby set aside. Let the case be remained back to the court below with a direction to dispose of the matter within two months from the date of receipt of the L.C.R. and with a further direction to allow both sides to adduce evidence if prayed for and after hearing argument of the both sides learned Trial judge should dispose of the matter within two months from the date of communication of the L.C.R. 10. Let copy of this judgement along with Lower Court Record be sent down to the Court below at once. 11. Urgent photostat certified copy, if applied for, be handed over to the parties as early as possible.