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2018 DIGILAW 126 (ORI)

Radhesyam Pradhan v. Ashok Kumar Sahu

2018-01-29

D.P.CHOUDHURY

body2018
JUDGMENT Dr.D.P.CHOUDHUIRY, J. - Challenge has been made to the order dated 01.07. 2009 taking cognizance of the offence under Section 138 of the N.I. Act in ICC Case No.6 of 2009 by the learned Judicial Magistrate First Class, Loisingha. FACTS. 2. The factual matrix leading to the filing of the writ petition is that on 12.11.2008 the petitioner purchased paddy worth of Rs.7,00,000/- from the opposite party. In the transaction the petitioner issued a cheque bearing No.416964 dated 17.11.2008 of S.B.I., Duduka Branch in the district of Bolangir. Then the opposite party placed the cheque for collection through his banker, namely, Allahabad Bank. The Branch Manager of SBI, Duduka Branch returned the said dishonoured cheque with the remarks that there is insufficient balance in the account of the petitioner. So, the opposite party sent a notice to the petitioner to pay the said amount of Rs.7,00,000/- within fifteen days failing which he would take shelter in the Court of law. The said notice was received by the petitioner on 16.02.2009, but the petitioner denied to have any liability in response to the demand notice. Thereafter, the petitioner kept quite. However, he received another demand notice from the opposite party on 6.5.2009 again asking the petitioner to pay Rs.7,00,000/- within fifteen days from the date of receipt of the said notice. Since no response was made by the petitioner, the petitioner came to know that the opposite party has initiated criminal prosecution vide ICC Case No.6 of 2009 in the Court of J.M.F.C., Loisingha. On 1.7.2009 the learned Magistrate took cognizance of the offence under Section 138 of the N.I. Act and issued process against the petitioner. Challenging the said order, the present writ application has been filed by the petitioner on various grounds. SUBMISSIONS. 3. Mr. H.S. Mishra, learned Counsel for the petitioner submitted that the impugned order of taking cognizance is illegal and improper because the petitioner is not liable to pay any amount to the opposite party and there was no occasion to respond to the demand notice made by the opposite party. According to him, the opposite party has not filed any complaint within 30 days from the date of cause of action first arose. So, the order of taking cognizance of offence on the complaint filed within 30 days of receipt of the second demand notice is bad in law. According to him, the opposite party has not filed any complaint within 30 days from the date of cause of action first arose. So, the order of taking cognizance of offence on the complaint filed within 30 days of receipt of the second demand notice is bad in law. He further submitted that the petitioner received the 2nd demand notice without disclosure of the first demand notice by which the opposite party is guilty of suppression of material fact to the learned trial Court. 4. Mr. Mishra, learned Counsel for the petitioner has relied on the decision of the Supreme Court in Prem Chand Vijay Kumar v. Yaspal Singh and another, (2005) 4 SCC 417 and submitted that in view of the authority of the Hon’ble Apex Court, cognizance of the offence under Section 138 of the N.I. Act is not permissible on the 2nd. demand notice as the cause of action has already arisen within the statutory period from the 1st demand notice. Further, he submitted that the 2nd. demand notice being beyond the period of limitation, is not sustainable and the same is liable to be quashed. He has also relied on the decision of the Hon’ble Supreme Court in Tameeshwear Vaishnav v. Ramvishal Gupta, (2010) 45 OCR (SC), 555 wherein the Hon’ble Apex Court has held that since the cause of action had arisen on the 1st demand notice received by the appellant and the complaint petition filed beyond the period of limitation, the 2nd demand notice is not entertainable. On the whole, he submitted that impugned order of taking cognizance as well as the entire proceeding in ICC Case No.6 of 2009 should be quashed. 5. Mr. A.E. Mishra, learned Counsel for the opposite party submitted that the writ petition for quashing the order of cognizance is not maintainable because disputed questions of facts are involved in this case. While opposing the contention of the petitioner, learned Counsel for the opposite party submitted that the question of liability is already there in the complaint itself because admittedly he had purchased the materials and issued the cheque towards its cost. Moreover, the petitioner having suppressed his account, initially issued the cheque to encash Rs.7,00,000/- towards the cost of the paddy. While opposing the contention of the petitioner, learned Counsel for the opposite party submitted that the question of liability is already there in the complaint itself because admittedly he had purchased the materials and issued the cheque towards its cost. Moreover, the petitioner having suppressed his account, initially issued the cheque to encash Rs.7,00,000/- towards the cost of the paddy. The complainant-opposite party presented the cheque on 25.3.2009 and on 15.4.2009 the Branch Manager of SBI, Duduka Branch, the banker of the petitioner, returned the cheque showing insufficient funds in the account of the accused-petitioner. On 24.4.2009 the complainant-opposite party came to know from his banker about the dishonour of the cheque bearing No.416964. Then on 2.5.2009 the complainant-opposite party issued the demand notice. 6. Learned Counsel for the opposite party further submitted that after service of the notice, the petitioner did not pay the amount for which the complainant filed the complaint on 9.6.2009. So, the question of not receiving the notice and issuance of 2nd demand notice are all beyond the complaint, which should read only to find out cause of action. He has relied on the decision of the Hon’ble Supreme Court in Satyanarayan Rao v. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458 where the Hon’ble Supreme Court have held that while dealing with quashing of complaint, the Court ordinarily has to proceed on the averments made in the complaint and the High Court cannot entertain disputed questions of fact under Section 482, Cr.P.C. Besides, the proceeding is under one Writ Petition (Criminal) and therefore, the disputed questions of fact cannot be decided under Article 225 of the Constitution. So, he submitted to dismiss the writ petition. 7. The main point for consideration : Whether the order of taking cognizance is liable to be quashed and consequently the entire criminal proceeding is also liable to be quashed ? DISCUSSIONS. 8. It is the admitted fact that the petitioner had purchased the paddy from the complainant-opposite party for Rs.7,00,000/- and issued the cheque dated 17.11.2008 to the complainant-opposite party. It is also not in dispute that the cheque issued by the petitioner is to be drawn in the S.B.I. Duduka Branch, Bolangir. It is admitted fact that the complainant-opposite party presented the cheque in his Bank at Allahabad Bank, Bolangir for collection of the amount. 9. Annexure-3 is the complaint petition. It is also not in dispute that the cheque issued by the petitioner is to be drawn in the S.B.I. Duduka Branch, Bolangir. It is admitted fact that the complainant-opposite party presented the cheque in his Bank at Allahabad Bank, Bolangir for collection of the amount. 9. Annexure-3 is the complaint petition. Copy of the complaint petition clearly shows that the petitioner purchased the paddy worth of Rs.7,00,000/- on credit and then on 17.11.2008 he issued the cheque of the said amount bearing No.416964 to discharge the liability. However, it further shows that the cheque in question was presented before Allahabad Bank, Bolangir, who sent the same to SBI, Duduka Branch for collection vide letter dated 25.3.2009, but the banker of the petitioner returned the cheque on the ground that the petitioner has no sufficient funds in his account. On the other hand, learned Counsel for the petitioner submitted that the complainant has suppressed the material facts about the presentation of the cheque on 17.11.2008 and reply of the Bank on 2.12.2008 while returning the cheque showing insufficient balance. So, the suppression of fact in the complaint petition is a question of fact, which can only be decided at the time of trial because in view of the decision of the Supreme Court in Satyanarayan Rao (supra) that the complaint is to be taken into consideration while the Court proceeds to take cognizance of the offence. Not only this, but also Annexure-2, the demand notice dated 2.5.2009, which is claimed to be 2nd demand notice by the opposite parties, does not disclose about the issuance of the demand notice dated 13.2.2009. When the complainant and the demand notice dated 2.5.2009 do not disclose about issuance of demand notice by the advocate for the complainant, the same requires evidence to decide the question of fact. Moreover, the order of taking cognizance passed on 1.7.2009 stated as follows: “ The case record is put up today for passing necessary orders on the point of cognizance. Perused the complaint petition. The initial statement of the complainant, are the documents filed, i.e. original cheque of Rs.7,00,000/- bearing D-416964, letter No.2813 dt. 15.4.2009 issued by the Branch Manager, Allahabad Bank, Bolangir, Office copy of demand notice dated 2.5.2009 along with postal receipt No.3151 and postal A.D. case available on the record. Perused the complaint petition. The initial statement of the complainant, are the documents filed, i.e. original cheque of Rs.7,00,000/- bearing D-416964, letter No.2813 dt. 15.4.2009 issued by the Branch Manager, Allahabad Bank, Bolangir, Office copy of demand notice dated 2.5.2009 along with postal receipt No.3151 and postal A.D. case available on the record. I am of the opinion that there is prima facie evidence well made out of the offence u/s. 138 of N.I. Act are accordingly cognizance of the offence u/s. 138 of N..I. Act is taken. There are sufficient materials on record to proceed against the accused. Hence, issue summon against the accused fixing 13.8.2009 for his appearance. The complainant is to file requisite within a week hence for issuance of summon to the accused in both ways.” 10. The aforesaid order shows that the Court has taken cognizance basing on the demand notice dated 2.5.2009 after perusal of the complaint and initial statement of the complainant. So, the order of taking cognizance cannot be said to be illegal because the complaint and the notice dated 2.5..2009 have made out prima facie case under Section 138 of N.I. Act. 11. The contention of Mr. Mishra, learned Counsel for the petitioner with regard to the 1st demand notice requires evidence because the onus lies on the petitioner to rebut the charge by adducing evidence. The question of taking cognizance disclosed by the learned Magistrate cannot be said to be incorrect. With regard to the principle enunciated by the Hon’ble Supreme Court in Prem Chand Vijay Kumar (supra) and Tameeshwar Vaishnav (supra), there is no doubt about the principles laid down, wherein it is categorically held that the Magistrate cannot take cognizance of the offence under Section 138 of the N.I. Act beyond the limitation basing on 2nd demand notice, but in the present fact, the decisions are not applicable for the reason that the questions of fact are yet to be proved. CONCLUSIONS. 12. In terms of the above discussion, the impugned order of taking cognizance being not held illegal, cannot be quashed. Even if it is a Writ Petition (Criminal), the writ Court cannot be go into the questions of fact and therefore, the question of quashing the order of taking cognizance and further proceedings of the criminal case do not arise. Consequently, the writ petition being devoid of merit stands dismissed. Petition dismissed.