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Jharkhand High Court · body

2015 DIGILAW 32 (JHR)

Mulchand Agrawal v. State of Jharkhand

2015-01-07

RONGON MUKHOPADHYAY

body2015
ORDER : Heard learned counsel for the parties. 2. In the present criminal miscellaneous petition, the petitioner has prayed for quashing the order dated 16.5.2001 passed by the learned Judicial Magistrate, Ranchi in Complaint Case No. 517 of 1998, whereby and whereunder, the application field on behalf of the petitioner for discharge has been rejected. 3. The prosecution story as it appears from the complaint petition which has been instituted by the complainant/ opposite party No. 2, in brief, is that on 30.3.1998 a payment was made through a cheque bearing No. VB77CB/C322458 dated 30.3.1998 for a sum of Rs. 50,000/-and when the cheque was presented to the bank of the opposite party No. 2, the same was returned on 5.5.1998 with a note "insufficient fund". Accordingly, it has been stated that the complainant/ opposite party No. 2 sent a legal notice on 28.5.1998 and when no response was forthcoming from the petitioner, the complaint case was instituted. 4. After holding an enquiry u/s 202 of the Code of Criminal Procedure (Cr. P.C.) by recording the evidence of witnesses, cognizance was taken by the learned Chief Judicial Magistrate for the offences u/s 138 of the Negotiable Instrument Act (N.I. Act). It appears that on 21.3.2001, the petitioner had filed an application for discharge mainly stressing on the point that the alleged transaction was said to have been taken place in the District of Hazaribagh, whereas the present case has been instituted in the District of Ranchi. Thereafter vide order dated 16.5.2001, the application preferred on behalf of the petitioner for discharge was rejected by the learned Judicial Magistrate, Ranchi vide order dated 16.5.2001. 5. Learned counsel for the petitioner has assailed the impugned order dated 16.5.2001 by submitting that the grounds, which had been taken by the petitioner, has not properly been considered by the learned court below. He has further submitted that the filing of the complaint case was beyond the time limit prescribed under the provisions of N.I. Act and that since the cause of action did not arise at Ranchi as such no complaint could have been filed in the District of Ranchi and on the ground of territorial jurisdiction also the impugned order dated 16.5.2001 should be quashed and set aside. 6. 6. Learned counsel for the State on the other hand has submitted that technical requirements as per the provisions of N.I. Act has been correctly adhered to by the complainant/ opposite party No. 2 and it cannot be contended by the petitioner that the complaint was filed beyond the limitation prescribed under the N.I. Act. 7. After hearing the counsel for the parties and after perusing the records, it appears that the petitioner had issued a cheque for the amount of Rs. 50,000/-to the complainant/ opposite party No. 2 dated 30.3.1998 which was drawn on Vijaya Bank Limited, Upper Bazaar Ranchi Branch and when the same was presented through the bank of the complainant/ opposite party No. 2 i.e. The Central Bank of India, Ranchi Branch on 5.5.1998, which was within the validity period of the cheque, the same was returned unpaid with an endorsement "insufficient fund". The information sent by the Central Bank of India, Upper Bazaar Ranchi Branch with respect to the cheque, having been dishonoured, was received by the complainant/ opposite party No. 2 on 22.5.1998 and immediately thereafter on 28.5.1998 a registered letter was sent by the complainant/ opposite party No. 2 herein to the petitioner asking for making payment of Rs. 50,000/-in lieu of the dishonoured cheque within 15 days from the date of receipt of the said notice. It further appears that the petitioner had received the said notice on 27.8.1998 and the complaint was lodged on 21.9.1998. It thus appears that the provisions with respect to presentation of the cheque within the validity period of the cheque, making a demand for payment of the said amount by giving a notice in writing on the cheque getting dishonoured and on failure to make payment of the amount mentioned in the dishonoured cheque within 15 days of the receipt of the said notice, had thus been followed strictly and thereafter the complaint was filed within one month from the date on which the cause of action arose and consequently cognizance was also taken for the offence punishable u/s 138 of the N.I. Act. For successful initiation or launch of the prosecution under the provisions of Section 138 of the N.I. Act, satisfaction of all the ingredients of Section 138 and its proviso is the most essential factor which in the present case has been fulfilled. 8. For successful initiation or launch of the prosecution under the provisions of Section 138 of the N.I. Act, satisfaction of all the ingredients of Section 138 and its proviso is the most essential factor which in the present case has been fulfilled. 8. In this context reference may be made to a Judgment in the case of Dasrath Rupsingh Rathod v. State of Maharashtra and another reported in (2014) 9 SCC 129 wherein at Paragraph-17 it has been held thus:- “17. The marginal note of Section 138 of the NI Act explicitly defines the offence as being the dishonour of cheques for insufficiency, etc. of funds in the account. Of course, the headings, captions or opening words of a piece of legislation are normally not strictly or comprehensively determinative of the Sweep of the actual section itself, but it does presage its intendment. See Prick India Ltd. V. Union of India and Forage & Co. V. Municipal Corpn. of Greater Bombay. Accordingly, unless the provisions of the section clearly point to the contrary, the offence is concerned with the dishonour of a cheque; and in the conundrum before us the body of this provision speaks in the same timbre since it refers to a cheque being “returned by the bank unpaid”. None of the provisions of IPC have been rendered nugatory by section 138 of the NI Act and both operate on their own. It is trite that mens rea is the quintessential of every crime. The objective of Parliament was to strengthen the use of cheques, distinct from other negotiable instruments, as mercantile tender and therefore it became essential for Section 138 of the NI Act offence to be freed from the requirement of proving menas rea. This has been achieved by deeming the commission of an offence dehors mens rea not only under Section 138 but also by virtue of the succeeding two sections. Section 139 carves out the presumption that the holder of a cheque has received it for the discharge of any liability. Section 140 clarifies that it will not be available as a defence to the drawer that he had no reason to believe, when he issued the cheque, that it would be dishonoured. Section 138 unequivocally states that the offence is committed no sooner the drawee bank returns the cheque unpaid.” 9. Section 140 clarifies that it will not be available as a defence to the drawer that he had no reason to believe, when he issued the cheque, that it would be dishonoured. Section 138 unequivocally states that the offence is committed no sooner the drawee bank returns the cheque unpaid.” 9. The question of territorial jurisdiction which has been raised by the counsel for the petitioner to the effect that the District of Ranchi does not have any jurisdiction to institute the case is also answered in the case of Dashrath Rupsingh Rathod (Supra), wherein at Paragraph-21 it has been held thus:- “21. The interpretation of Section 138 of the NI Act which commends itself to us is that the offence contemplated therein stands committed on the dishonour of the cheque, and accordingly, JMFC at the place where this occurs is ordinarily where the complaint must be filed, entertained and tried. The cognizance of the crime by JMFC at that place however, can be taken only when the concomitants or constituents contemplated by the section concatenate with each other. We clarify that the place of the issuance or delivery of the statutory notice or where the complainant chooses to present the cheque for encashment by his bank are not relevant for purposes of territorial jurisdiction of the complaints even though non-compliance therewith will inexorably lead to the dismissal of the complaint. It cannot be contested that considerable confusion prevails on the interpretation of Section 138 in particular and Chapter XVII in general of the NI Act. The vindication of this view is duly manifested by the decisions and conclusion arrived at by the High Courts even in the few cases that we shall decide by this judgment. We clarify that the complainant is statutorily bound to comply with section 177, etc. of Cr PC and therefore the place or situs where the section 138 complaint is to be filed is not of his choosing. The territorial jurisdiction is restricted to the court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn.” 10. of Cr PC and therefore the place or situs where the section 138 complaint is to be filed is not of his choosing. The territorial jurisdiction is restricted to the court within whose local jurisdiction the offence was committed, which in the present context is where the cheque is dishonoured by the bank on which it is drawn.” 10. A conjoint reading of the facts of the case at hand and the judicial interpretation, as noted herein above, would lead to the conclusion that the ingredients of Section 138 of the N.I. Act, has been properly followed by complainant/ opposite party No. 2 herein and that the cheque being dishonoured within the territorial jurisdiction of the District of Ranchi and the complaint being filed in the District of Ranchi does not suffer from any jurisdictional error as the territorial jurisdiction in such circumstance was restricted to the place wherein cheque is dishonoured by the bank on which it is drawn, which in the present case is the Central Bank of India, Upper Bazaar Ranchi Branch. 11. Considering in totality, the facts and circumstance enumerated above, I do not find any illegality in the order dated 16.5.2001 passed by the learned Judicial Magistrate, Ranchi in Complaint Case No. 517 of 1998 and thus the present criminal miscellaneous petition is accordingly dismissed.