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2017 DIGILAW 1410 (JHR)

K. R. Malik v. State of Jharkhand

2017-08-09

RONGON MUKHOPADHYAY

body2017
ORDER : Heard Mr. Neeraj Sharma, learned counsel appearing on behalf of the petitioner and Mr. D.K. Karmakar, learned counsel appearing for the opposite party No. 2. 2. Since common question of facts and laws are involved in all these applications the same are being disposed of by this common order. Cr. M.P. No. 2366 of 2015 : 3. In this application, the petitioner has prayed for quashing of the entire criminal Proceeding in connection with C/1 Case No. 2028 of 2015 including the order dated 15.09.2015 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur whereby and whereunder cognizance has been taken for the offence punishable under Section 138 of the Negotiable Instruments Act. Cr. M.P. No. 772 of 2016 : 4. In this application, the petitioner has prayed for quashing of the entire criminal proceedings in connection with C/1 Case No. 2026 of 2015 including the order dated 26.11.2015 passed by the learned Judicial Magistrate, Jamshedpur by which cognizance has been taken for the offence punishable under Section 138 of the Negotiable Instruments Act. Cr. M.P. No. 775 of 2016 : 5. In this application, the petitioner has prayed for quashing of the entire criminal proceedings in connection with C/1 Case No. 2029 of 2015 including the order dated 27.11.2015 passed by the learned Judicial Magistrate, Jamshedpur whereby and whereunder cognizance has been taken for the offence punishable under Section 138 of the Negotiable Instruments Act. Cr. M.P. No. 922 of 2016 : 6. In this application, the petitioner has prayed for quashing of the entire criminal proceedings in connection with C/1 Case No. 2027 of 2015 including the order dated 11.12.2015 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur whereby and whereunder cognizance has been taken for the offence punishable under Section 138 of the Negotiable Instruments Act. 7. Before considering the argument advanced by the learned counsel for the petitioner as well as the opposite party No. 2 it would be necessary to deal with the factual aspect of the individual cases which are as under :- Cr. M.P. No. 2366 of 2015 : 8. Allegation has been levelled that the complainant who was the owner of agricultural land in the District of Pune was approached by the petitioner for purchase of the said land and accordingly the accused agreed to purchase the land for a total consideration amount of Rs. M.P. No. 2366 of 2015 : 8. Allegation has been levelled that the complainant who was the owner of agricultural land in the District of Pune was approached by the petitioner for purchase of the said land and accordingly the accused agreed to purchase the land for a total consideration amount of Rs. 62,78,460/- and it was decided that the consideration amount shall be paid in eight installments. A sale-deed was duly executed by the petitioner and the opposite party No. 2 on 17.04.2013, and the same was dilly registered with the Sub-Registrar of Assurance. In terms of agreement entered into eight post dated cheques were issued by the petitioner in favour of the complainant. 9. It is said that the first cheque dated 28.04.2013 was enchashed but the second cheque dated 17.06.2013 for an amount of Rs. 8,00,000/- got dishonoured on presentation when it was deposited for the third time it was dishonoured on the ground of insufficiency of fund. A legal notice was served upon the accused and since in spite of the same he failed to make payment C/1 Case No. 4134 of 2013 was instituted in which cognizance was taken. In view of the judgment in the case of Dashrath Rupsing Rathod v. State of Maharashtra and another reported in (2014) 9 SCC 129 the complaint was returned to the complainant to be presented before the proper Court. Subsequent thereto a fresh complaint was filed being C/1 Case No. 2028 of 2015 in which cognizance was taken on 15.09.2015 under Section 138 of the Negotiable Instruments Act. Cr. M.P. No. 772 of 2016 : 10. Allegation has been levelled that the complainant who was the owner of agricultural land in the District of Pune was approached by the petitioner for purchase of the said land and accordingly the accused agreed to purchase the land for a total consideration amount of Rs. 62,78,460/- and it was decided that the consideration amount shall be paid in eight installments. A sale-deed was duly executed by the petitioner and the opposite party No. 2 on 17.04.2013 and the same was duly registered with the Sub-Registrar of Assurance. In terms of agreement entered into eight post dated cheques were issued by the petitioner in favour of the complainant. 11. The complainant had deposited one cheque amount to Rs. A sale-deed was duly executed by the petitioner and the opposite party No. 2 on 17.04.2013 and the same was duly registered with the Sub-Registrar of Assurance. In terms of agreement entered into eight post dated cheques were issued by the petitioner in favour of the complainant. 11. The complainant had deposited one cheque amount to Rs. 8,00,000/- but the same was dishonoured which led to issuance of a legal notice and on failure on the part of the petitioner to make payment to the complainant C/1 Case No. 4152 of 2013 was instituted in which cognizance was taken under Section 138 of the Negotiable Installments Act. In view of the judgment in the case of Dashrath Rupsing Rathod v. State of Maharashtra and another, reported in (2014) 9 SCC 129 , the complaint was returned back to the complainant to be presented before the proper Court and pursuant to the same, a fresh complaint was filed in which cognizance was taken under Section 138 of the Negotiable Instruments Act. Cr. M.P. No. 775 of 2016 : 12. Allegation has been levelled that the complainant who was the owner of agricultural land in the District of Pune was approached by the petitioner for purchase of the said land and accordingly the accused agreed to purchase the land for a total consideration amount of Rs. 62,78,460/- and it was decided that the consideration amount shall be paid in eight installments. A sale-deed was duly executed by the petitioner and the opposite party No. 2 on 17.04.2013 and the same was duly registered with the Sub-Registrar of Assurance. In terms of agreement entered into eight post dated cheques were issued by the petitioner in favour of the complainant. 13. The seventh and eighth cheques dated 17.11.2013 and 17.12.2013 for a total amount of Rs. 16,00,000/- were dishonoured which led to issuance of a legal notice and since the petitioner failed to pay the amount C/1 Case No. 992 of 2014 was instituted in which cognizance was taken under Section 138 of the Negotiable Instruments Act. In view of the judgment in the case of Dashrath Rupsing Rathod v. State of Maharashtra and another reported in (2014) 9 SCC 129 , the complaint was returned back to the complainant to be presented before the appropriate Court which led to institution of a fresh complaint and cognizance thereto. Cr. In view of the judgment in the case of Dashrath Rupsing Rathod v. State of Maharashtra and another reported in (2014) 9 SCC 129 , the complaint was returned back to the complainant to be presented before the appropriate Court which led to institution of a fresh complaint and cognizance thereto. Cr. M.P. No. 922 of 2016 : 14. Allegation has been levelled that the complainant who was the owner of agricultural land in the District of Pune was approached by the petitioner for purchase of the said land and accordingly the accused agreed to purchase the land for a total consideration amount of Rs. 62,78,460/- and it was decided that the consideration amount shall be paid in eight installments. A sale-deed was duly executed by the petitioner and the opposite party No. 2 on 17.04.2013 and the same was duly registered with the Sub-Registrar of Assurance. In terms of agreement entered into eight post dated cheques were issued by the petitioner in favour of the complainant. 15. It is alleged that fifth and sixth cheques dated 17.09.2013 amounting to Rs. 8,00,000/- and 12,00,000/- were dishonoured on account of insufficiency of fund which led to issuance of a legal notice and since the amount was not paid C/1 Case No. 618 of 2014 was instituted in which cognizance was taken under Section 138 of the Negotiable Instruments Act. However, in view of the judgment in the case of Dashrath Rupsing Rathod v. State of Maharashtra and another reported in (2014) 9 SCC 129 , the complaint was returned back to the complainant for presenting it before the appropriate Court which led to filing of the subsequent complaint and taking of cognizance. 16. Learned counsel for the petitioner has stated that the learned Court below was precluded from taking cognizance as the same was filed beyond the period of thirty days as had been held in the case of Dashrath Rupsing Rathod v. State of Maharashtra and another (supra). Learned counsel submits that although the complainant has sought to give feeble excuses for delay in filing the complaint case but the learned Court below seem to have been quite oblivious to the fact that the question of delay was to be considered. It has been stated that no proper explanation has been submitted by the petitioner and, therefore, the learned Court below should have dismissed the complaint case. 17. Mr. It has been stated that no proper explanation has been submitted by the petitioner and, therefore, the learned Court below should have dismissed the complaint case. 17. Mr. D.K. Karmakar, learned counsel appearing for the opposite party No. 2 in all the cases, has opposed the prayer made by the petitioner and has stated that once the complaint petition was returned back to the complainant he had filed a fresh complaint case and, therefore, the question of delay does not arise. Learned counsel submits that the petitioner had submitted eight cheques in lieu of purchase of the land but most of the cheques had got dishonoured and, therefore, the petitioner has rightly been prosecuted for committing an offence under Section 138 of the Negotiable Instruments Act. 18. The common thread which runs through all the cases is that after dishonour of the cheques, separate complaint cases were instituted in which cognizance was also taken but in view of the judgment passed by the Hon'ble Supreme Court in the case of Dashrath Rupsing Rathod v. State of Maharashtra and another (supra) all the complaints were returned back to the complainant to be filed the proper Court. In the case of Dashrath Rupsing Rathod v. State of Maharashtra and another (supra), it was held that if the complaints are filed/re-filed within thirty days of their return they shall be deemed to have been filed within the time prescribed by law unless the initial or prior filing was itself time barred. 19. Learned counsel for the petitioner in course of his argument has referred to an order passed by the Chhattisgarh, High Court in Cr. M.P. No. 620 of 2015 in which it was held that if the complaint has already been returned and was not filed before the appropriate forum as per applicable law in force at the prevailing time no complaint would be presumed to be pending at that time. Admittedly, after the complaint was returned back to the complainant no complaint was pending and the criminal law was set into motion once a fresh complaint was filed before the appropriate Court. Although the complainant in the complaint petition has given reasons for the delay in instituting the complaint case but as it seems the impugned orders have not given any consideration on the question of delay. Although the complainant in the complaint petition has given reasons for the delay in instituting the complaint case but as it seems the impugned orders have not given any consideration on the question of delay. The learned Court below seems to have taken cognizance only based on the facts of the case by totally ignoring the fact that in view of the judgment in the case of Dashrath Rupsing Rathod v. State of Maharashtra and another (supra), the complaint petition was to be represented/re-filed within a period of thirty days. 20. In such circumstance, therefore, the impugned orders 15.09.2015 in C/1 Case No. 2028 of 2015, 26.11.2015 in C/1 Case No. 2026 of 2015, 27.11.2015 in C/1 Case No. 2029 of 2015 and 11.12.2015 passed in C/1 Case No. 2027 of 2015 are, hereby, quashed and set aside and the matter is remanded back to the learned Court blow to pass a fresh order on the complaint petition after considering the delay in institution of the complaint case. 21. These applications stand disposed of in the light of above. Applications disposed of.