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2013 DIGILAW 404 (ORI)

Pradeep Kumar Patra v. Radhamohan Padhi

2013-09-23

B.R.SARANGI

body2013
JUDGMENT Dr. B.R. Sarangi, J. The opposite party being the complainant filed a complaint case bearing I.C.C. Case No. 215 of 1999 before the court of the learned S.D.J.M., Bhubaneswar under Section 138 of the N.I. Act in which the learned Magistrate took cognizance by order dated 25.7.2000, which is sought to be challenged in the present application. 2. The fact as revealed from the complaint petition is that on 10.12.1998, the petitioner issued a cheque for Rs. 30,000/- in favour of the opposite party bearing cheque No. 749465 dated 10.12.1998 drawn on State Bank of India, C&I Division, Bhubaneswar, Main Branch towards payment of his personal debt. It is stated that the said amount had been borrowed by the petitioner from the opposite party on 13.08.1997 by executing a promissory note for the said value. After obtaining the said cheque, the opposite party deposited the same in Urban Cooperative Bank Ltd., Bhubaneswar and the Bank forwarded the said cheque for clearance, which was returned for non-clearance “due to insufficient fund”. On 31.3.1999, the complainant-opposite party through his Advocate intimated the fact of non-clearance/non-encashment of the cheque to the petitioner by registered post with A.D. demanding for immediate payment within a period of fifteen days. It is further alleged that in spite of such notice the petitioner failed to pay the said amount within the stipulated period for which the opposite party-complainant filed the complaint petition vide Annexure-1. 3. This Court while entertaining this application, issued notice on 3.4.2003 through registered post with A.D. and after valid service of notice, the A.D. has been received back. But none appeared for the opposite party. 4. Mr. A. Das, learned counsel appearing for the petitioner states that the petitioner is no way connected with the alleged transaction and as such the initiation of the complaint case before the court below is to harass the petitioner. After initiation of the complaint case, the complainant was examined under Section 200 Cr.P.C. and thereafter the learned S.D.J.M. took cognizance under section 138 of the N.I. Act against the petitioner and issued notice for his appearance. He further submits that during the proceeding the opposite party-complainant filed the advocate notice which was sent to the petitioner as stated in the complaint petition. He further submits that during the proceeding the opposite party-complainant filed the advocate notice which was sent to the petitioner as stated in the complaint petition. In the said notice it was stated “you on or about 8.9.1998 issued cheque bearing No.749422 dated 08.9.1998, drawn on State Bank of India, C&I, Bhubaneswar Main Branch in favour of my client Mr. Tapan Kumar Padhi towards liquidation of loan availed by you from my client”, whereas in the complaint petition in paragraph-8(1), it is stated as follows :- “that on 10.12.1998 at Bhubaneswar the accused issued a cheque favouring complainant amount to Rs.30,000/- only bearing cheque No.749465 dated 10.12.1998 drawn on State Bank of India, C&I, Bhubaneswar Main Branch towards repayment of his personal debt ………” 5. On perusal of the above mentioned statements, it is found that two contradictory stands have been taken, namely, in both the statements the cheque numbers and dates are different. Therefore, it appears that the complainant is not sure of the cheque issued in his favour and its number and dates, thereby an attempt was being made to cause harassment to the petitioner by filing such frivolous complaint case. 6. Mr. A. Das, learned counsel for the petitioner relying on the judgments of the Hon’ble apex Court in the case of DCM FINANCIAL SERVICES LIMITED v. J.N. SAREEN AND ANOTHER, (2008) 8 SCC 1 and JUGESH SEHGAL v. SHAMSHER SINGH GOGI, 2009 (II) OLR (SC) 309, (2009) 14 SCC 683 submits that while taking cognizance the learned S.D.J.M., Bhubaneswar should have at least followed the section as enunciated under the N.I. Act i.e. under Sections 138 and 142 and without application of any mind, the order taking cognizance under Section 138 of the N.I. Act is bad in law. He also relies upon the judgments in the case of STATE OF HARYANA AND OTHERS v. BHAJAN LAL AND OTHERS, reported in 1992 Supp.(1) SCC 335 and Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others, AIR 1988 SC 709 , where it is stated that this Court has jurisdiction to quash the proceeding by invoking the power under Section 482 Cr.P.C. 7. In view of the above contention of the learned counsel for the petitioner, now the provisions contained under Section 138 of the N.I. Act is to be taken for consideration. In view of the above contention of the learned counsel for the petitioner, now the provisions contained under Section 138 of the N.I. Act is to be taken for consideration. On perusal of the same, it is found that the complaint petition alleging an offence under Section 138 N.I. Act must demonstrate the following ingredients: “(i) a cheque was issued; (ii) the same was presented; (iii) but, it was dishonoured; (iv) a notice in terms of the said provision was served on the person sought to be made liable; and (v) despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice: S.M.S. S. Pharmaceuticals Ltd. V. Neeta Bhall and another:2007(I) OLR 559 and Saroj Kumar Poddar v. State (NCT of Delhi) and another: 2007 (I) OLR 347”. 8. Applying this analogy to the present case, it is made clear that a cheque was issued but on perusal of the complaint petition vis-à-vis inquiry report, it is found that in both the cases the cheque numbers and dates are different. There is no material available on record to indicate which cheque has been issued and which cheque has been dis-honoured. On perusal of the factual aspects of the case in hand, it appears that the complainant is not certain of saying which cheque has been produced on which date. In that view of the matter, it can be said that the complainant has not come to the Court with a clean hand and more particularly, an offence under Section 138 of the N.I. Act has not been made out as alleged by the complainant. So far as invoking the jurisdiction of this Court under Section 482, Cr.P.C. is concerned, relying upon the judgments mentioned (supra) learned counsel for the petitioner stated that the said point is no more res integra. In view of the fact that the complaint alleged does not make out a case for interference of this Court invoking the jurisdiction of this Court under Section 482 Cr.P.C., the proceeding should be quashed. 9. In view of the fact that the complaint alleged does not make out a case for interference of this Court invoking the jurisdiction of this Court under Section 482 Cr.P.C., the proceeding should be quashed. 9. Taking into consideration the parameters fixed by the apex Court with regard to quashing of the proceeding as stated (supra), this Court has no hesitation to hold that the complainant has failed to establish a case as against the petitioner so as to invoke the provisions contained under Section 138 of the N.I. Act. In view of such position and fact of law, this Court is of the opinion that the learned Magistrate has committed gross error which is apparent on the face of the record by taking cognizance under Section 138 of the N.I. Act. For the ends of justice and in order to prevent the abuse of the process of the Court, this Court has no hesitation to quash the proceeding initiated against the petitioner under Section 138 of the N.I. Act. Accordingly, the proceeding so initiated under Section 138 of the N.I. Act in ICC Case No. 215 of 1999 pending in the court of learned S.D.J.M., Bhubaneswar is hereby quashed. 10. Accordingly, the CRLMC is allowed. CRLMC allowed.