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Jharkhand High Court · body

2014 DIGILAW 413 (JHR)

Ajit Singh Namdhari v. State of Jharkhand

2014-03-22

R.R.PRASAD

body2014
Order In view of the office note, notice is accepted to have been validly served upon O.P No.2, as it has been reported by the process server that the O.P No.2 has refused to accept the notice. 2. Heard learned Senior counsel appearing for the petitioner. 3. This application has been filed for quashing of the entire proceeding of complaint Case No. 612 of 2004 including the order dated 24.02.2005, whereby and whereunder the Magistrate took cognizance of the offences punishable under section 420 of the Indian Penal Code and also under section 138 of the N.I Act. 4. The case of the complainant, as has been made out in the complaint, is that an advertisement was issued in the newspaper by the Proprietor and Director of the Baron International Limited, Mumbai with stipulation that whoever would be purchasing Akai T.V they will be given the post-dated cheque of Rs. 30,000/-which would be payable after six years. Being induced by such statement, the complainant purchased Akai T.V from the shop of this petitioner who happens to be the dealer of firm Baron International Limited who had issued advertisement in the newspaper. After purchasing T.V., a cheque signed by the proprietor and director of Baron International Limited was given by this petitioner to the complainant. On due date when it was presented before the bank it got dishonoured on account of closure of the account. In that event, the complaint case was lodged which was registered as compliant case No. 612 of 2004 in which when cognizance of the offences as aforesaid was taken vide order dated 24.02.2005 that has been challenged in this case. 5. Mr. Prem Chand Tripathi, learned senior counsel appearing for the petitioner, submits that the petitioner had never issued such an advertisement in the newspaper rather it was the company, who, had issued such an advertisement. The complainant had purchased the T.V from the shop of this petitioner as the petitioner was the dealer of the firm known as Baron International Limited. Prem Chand Tripathi, learned senior counsel appearing for the petitioner, submits that the petitioner had never issued such an advertisement in the newspaper rather it was the company, who, had issued such an advertisement. The complainant had purchased the T.V from the shop of this petitioner as the petitioner was the dealer of the firm known as Baron International Limited. The cheque signed by the proprietor of the said Baron International Limited was simply handed over to the complainant which got dishonoured, but the complainant not only lodged the case against the proprietor of the Baron International but also against this petitioner who can never be said to have defrauded the complainant nor can be said to have committed offence under section 138 of the N.I. Act as the petitioner had never signed the cheque which got dishonoured and thereby the court committed illegality in taking cognizance of the offences as aforesaid against the petitioner. 6. Having heard learned counsel appearing for the parties it does appear that the petitioner had never issued the advertisement calling upon the customers to purchase the T.V with a stipulation that on such purchase a cheque of Rs. 30,000/-would be given which would be payable after six years. That advertisement had been issued by the proprietor of the Baron International and even the cheque had been signed by the proprietor. In that event the petitioner can never be said to have defrauded the complainant and thereby no case is made out against the petitioner under section 420 of the Indian Penal Code. 7. Further it be stated that the petitioner never happens to be the drawer of the cheque rather the drawer of the cheque is the proprietor of the Baron International limited. In that event the petitioner would never be liable to be prosecuted under section 138 of the N.I Act. The provision as contained in Section 138 of the N.I Act reads as follows:- “138. In that event the petitioner would never be liable to be prosecuted under section 138 of the N.I Act. The provision as contained in Section 138 of the N.I Act reads as follows:- “138. Dishonour of cheque for insufficiency, etc., of funds in the account.-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 person 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: Provided that nothing contained in this section shall apply unless- a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; b) the payee or the holder in due course of the cheque, as the may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 8. 8. From perusal of the provision it does appear that if a person draws a cheque on an account maintained by him with a bank for payment of any amount to another person for discharge of any debt or other liability is returned by the bank unpaid to drawer of the cheque he would be liable for the prosecution under section 138 of the N.I. Act. Admittedly, the petitioner never happens to be the drawer of the cheque. In that event prosecution under section 138 of the N.I Act is bad. 9. Under the circumstances entire complaint case no. 612 of 2004 including order dated 24.02.2005 taking cognizance is hereby quashed, so far the petitioner Ajit Singh Namdhari is concerned. 10. In the result this application stands allowed.