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2013 DIGILAW 398 (JHR)

Geeta Agarwalla v. State of Jharkhand

2013-03-20

R.R.PRASAD

body2013
JUDGMENT : 1. Heard learned counsel appearing for the petitioner and learned counsel appearing for the complainant-opposite party no.2. 2. This application has been filed for quashing of the order dated 22.9.2011 passed by the then Judicial Magistrate, Koderma in Complaint Case No.136 of 2000 whereby and whereunder cognizance of the offence punishable under Section 138 of the Negotiable Instrument Act was taken against the petitioner. 3. Mr.A.K.Das, learned counsel appearing for the petitioner submits that it is the case of the complainant that a cheque issued to the complainant by the petitioner when was presented before the Bank, the same was dishonoured after making endorsement that the cheque has not been drawn on us. Subsequently, the said cheque was again presented before the Bank whereby again the Bank refused to honour the cheque by making endorsement “referred to drawer”. Third time also the cheque when was presented was not honoured on making endorsement that “cheque series do not relate to us”. 4. Thereupon a complaint was lodged taking the date when the Bank refused to honour the cheque on making endorsement “cheque series do not relate to us” as accrual of cause of action. 5. Mr.A.K.Das, learned counsel appearing for the petitioner submits that on such complaint, cognizance of the offence was taken under Section 138 of the Negotiable Instrument Act, though cheque had never been dishonoured on the ground if insufficiency of fund in the account of the drawer or that it exceeds the amount arranged to be paid from the account of the petitioner and thereby no complaint can be maintained for an offence under Section 138 of the Negotiable Instrument Act and thereby the court certainly committed illegality in taking cognizance of the offence under Section 138 of the Negotiable Instrument Act. 6. As against this, Mr.Atanu Banerjee, learned counsel appearing for the opposite party no.2 submits that it is true that the case was lodged when the cheque got dishonoured on making endorsement that cheque series do not relate to Bank but on that basis if the court has taken cognizance, the order taking cognizance can never be held to be bad for the reason that whenever cheque issued by a person is dishonoured on its presentation before the Bank. presumption would be there that the cheque has been given in discharge of debt and therefore, the court seems to have rightly taken cognizance of the offence punishable under Section 138 of the Negotiable Instrument Act. 7. I do not find any substance in the submission advanced on behalf of the opposite party no.2. 8. The provision as contained in Section 138 of the Negotiable Instrument Act does stipulate that if a cheque is given to a person in discharge of the debt is dishonoured on its presentation on account of the fact that sufficient money is not there in the account of the drawer or that the amount of the debt exceeds the amount arranged to be paid one can maintain prosecution under Section 138 of the Negotiable Instrument Act but in this case cheque had never been dishonoured on those two grounds as are there under Section 138 of the Negotiable Instrument Act. In that event, complaint certainly cannot be maintained. So far submission relating to presumption is concerned, that presumption is drawn only when a case is made out under Section 138 of the Negotiable Instrument Act. Thus, the case of the complainant never falls within the purview of the provision of Section 138 of the Negotiable Instrument Act and thereby the complaint can not be said to be maintainable. 9. In such situation, the order taking cognizance is hereby quashed. 10. In the result, this application stands allowed.