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2016 DIGILAW 868 (ORI)

TRUPTIRANJAN DAS v. STATE OF ODISHA

2016-09-23

B.K.NAYAK

body2016
JUDGMENT : B.K. Nayak, J. - Heard learned counsel for the petitioner, learned counsel for opposite party No. 2 did not appear in spite of repeated calls. Perused the records. 2. This application under Section 482, Cr.P.C. has been filed for quashing the proceeding in I.C.C. Case No. 221 of 2013 pending on the file of the learned S.D.J.M., Bhubaneswar, on the ground that the said complaint case, which is under Section 138 of the Negotiable Instruments Act, is barred by limitation in terms of the provisions under Section 142 of the N.I. Act since notice demanding payment was issued by the complainant more than thirty days after the fact of dishonour of the cheque was made known to him. 3. It appears from the complaint petition itself that the cheque was issued on 12.08.2012 and on the same day it was presented before the Bank by the opposite party-complainant which was dishonoured and accordingly the opposite party received intimation from the bank on 06.09.2012. It is alleged that on the request of the petitioner, the complainant-opposite party No. 2 waited for some time and issued notice to the petitioner demanding payment on 15.12.2012 which was said to have been acknowledged by the petitioner and that on the request of the petitioner he waited for some time and payment having not been made, he filed the complaint petition on 18.01.2013. 4. Section 142 of the N.I. Act runs as follows : "142. Cognizance of offences - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) : (a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 : Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period; (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138." 5. Section 138 of N.I. Act constitutes the offence in case of dishonour of cheque and the proviso thereto prescribes certain conditions, which if not fulfilled, no penal action can lie against the drawer of the cheque, Section 138 of the Act runs 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 of 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 sections 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 case 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. 6. 6. It transpires from the facts described in the complaint petition of the opposite party that the complainant failed to issue a notice to the petitioner demanding payment within 30 days from the date of receipt of information from the bank regarding dishonour of cheque, as required under Clause (b) of the proviso to Section 138 of the Act. Therefore, the complaint filed by the petitioner is not maintainable. Hence the proceeding in the complaint case (ICC No. 221 of 2013 of the Court of the S.D.J.M., Bhubaneswar) is quashed. L.C.R. be returned.