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2018 DIGILAW 273 (JHR)

Krishna Kanti Tiwary v. State of Jharkhand

2018-02-01

RONGON MUKHOPADHYAY

body2018
ORDER Heard Mr. P.P.N. Roy, learned counsel appearing on behalf of the petitioner and Mr. Jitendra S. Singh, learned counsel on behalf of the opposite party No.2. 2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Complaint Case No.210 of 2005 including the order dated 14.6.2005 passed by learned Judicial Magistrate, 1st Class, Ranchi, whereby and whereunder, cognizance has been taken for the offence punishable u/s 138 of the Negotiable Instruments Act. 3. The complaint was instituted by the opposite party No.2, in which it was averred that the complainant is the Managing Director of M/s Agrotech Pvt. Ltd., which is a distributor of VST Tillers Ltd., Bangalore which manufactures tractors and power tillers. It has been stated that the Department of Agriculture, State of Jharkhand has floated a scheme for supply of power tillers to the farmers. M/s Milan Enterprises approached M/s VST Tiller Pvt. Ltd., Bangalore for grant of sub-dealership in the District of Chatra, The same was accepted. The total cost of power tillers was Rs. 1,55,000/- and M/s Milan Enterprises was required to deposit the farmers' share of Rs. 40,500/- per power tiller and the rest amount was to be paid by the Government as subsidy to M/s VST Tiller Pvt.Ltd. It has been alleged that 40 numbers of power tillers were given to M/s Milan Enterprises to supply it to the farmers by the complainant. It has been alleged that the accused persons made farmers share of different dates in cash or demand draft Rs. 5 Lakhs remained outstanding for which two post dated cheques of Rs.3 Lakhs and Rs.2 Lakhs was issued in the joint signature of partners of M/s Milan Enterprises in the name of M/s VST Tiller Pvt. Ltd., Bangalore. The allegation has been levelled that the complainant had accepted both the cheques on behalf of M/s VST Tiller Pvt. Ltd. which endorsed both the cheques as holder in due course for realization of the amount. The complainant in his capacity as holder of the cheque presented the same to bank on 8.10.2004 and the same was dishonored as the account was closed. The complainant could come to know that M/s Milan Enterprises had closed his business and the accused had set up a new business, in the name and style of M/s. Raj Enterprises at Hazaribag. The complainant could come to know that M/s Milan Enterprises had closed his business and the accused had set up a new business, in the name and style of M/s. Raj Enterprises at Hazaribag. It has been alleged that a notice was sent on 1.11.2004 which was unnerved and subsequently two more legal notices were sent and the accused persons were also approached but since the amount was not paid the complaint case was instituted. Upon conducting an enquiry on the complaint, cognizance was taken on 14.6.2005 by the learned Judicial Magistrate, 1st Class, Ranchi u/s.138 of the Negotiable Instruments Act. 4. It has been submitted by Mr. P.P.N. Roy, learned senior counsel for the petitioner that the petitioner had earlier filed Complaint Case No. 40 of 2005 against the opposite party No. 2 for the offences u/ss.323, 406, 420, 422 and 506 of the Indian Penal Code. Learned senior counsel further submits that the petitioner had expended Rs.10 Lakhs including the purchase price of the tillers as well as the expenses incurred for bringing tillers to Ranchi and since the opposite party did not return the amount, the complaint was lodged by the petitioner. Learned senior counsel further submits that the mandatory provisions of the Negotiable Instruments Act have not been followed, as the opposite party No.2 issued successive legal notice to the petitioner and had tried to justify the filing of the complaint within the prescribed time limit. It has been stated that nothing has been mentioned as to when the notices were received. Learned senior counsel in support of his contention that there can be only cause of action and successive legal notices would not lead to create separate cause of action has referred to the Judgment in the case of Sadanandan Bhadran Vs. Madhavan Sunil Kumar reported in (1998) 7 Supreme Today 20. It has been further submitted that the date of notice was also not given in the complaint petition. Learned senior counsel concludes his arguments stating that since the provisions of the Negotiable Instruments Act has to be rigidly followed and the complaint case has been instituted beyond the period of 30 days, the, same is barred by limitation and therefore the present application is be allowed. 5. Mr. Learned senior counsel concludes his arguments stating that since the provisions of the Negotiable Instruments Act has to be rigidly followed and the complaint case has been instituted beyond the period of 30 days, the, same is barred by limitation and therefore the present application is be allowed. 5. Mr. Jitendra S. Singh, learned counsel appearing on behalf of the opposite party No. 2 on the other hand has stated that the learned Magistrate has the power to take, cognizance. Learned counsel further has referred to Section 98-B read with Section 142 of the Negotiable Instruments Act by stating that the taking of cognizance, was not barred, it, has further been submitted that the petitioner received the legal notice dated 4.2.2005 and since the amount in question was not paid to the opposite party No.2, he filed the complaint on 24.2.2005 which was within the prescribed time limit as per the statute and therefore it cannot be said that the Complaint petition was instituted beyond the period of limitation. 6. On consideration of the arguments advanced by the learned counsel for the parties and on going through records, it appears that on 8.10.2004 the cheques were deposited which were dishonoured on 12.10.2004 on account of the fact that the account itself was closed. A further notice was given on 29.11.2004 and thereafter another notice was given on 4.2.2005 but since within 15 days of the receipt of notice, the cheque amount was not paid, the complaint was instituted on 24.2.2005. Learned senior counsel for the petitioner has basically relied upon the' fact that the complaint was filed beyond the period of limitation. 7. It appears from the complaint petition itself that on 1.11.2004, the first legal notice was sent but according to the complainant the same returned unserved. However, nothing had been brought on record to suggest that the notice indeed had returned unserved. A second notice was sent on 29.11.2004 in the new address of the petitioner, but nothing has been stated about whether the said notice was served nor not. The complainant in order to explain the delay in filing of the complaint petition had resorted to a statement that the petitioner was met on several occasions and it was assured that the amount shall be returned back within 45 days, but since the amount was not returned, a notice was sent on 4.2.2005. The complainant in order to explain the delay in filing of the complaint petition had resorted to a statement that the petitioner was met on several occasions and it was assured that the amount shall be returned back within 45 days, but since the amount was not returned, a notice was sent on 4.2.2005. Even if it is assumed that the second notice dated 29.11.2004 which was sent on the new address of the petitioner was served upon the petitioner although no such statement has been given by the opposite party No.2 in the complaint petition, in such circumstances also the complaint appears to be hopelessly time barred. The opposite party No.2 could not have been permitted to give successive legal notices as the cause of action which arises is once with respect to issuance of legal notice. In this context reference may be made to the case of Sadanandan Bhadran vs. Madhavan Sunil Kumar reported in (1998) 7 Supreme Today 20, wherein it was held as follows:- "10. Now the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonor, and that too within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonized, with the interpretation that on each presentation of the cheque and its dishonor a fresh right-and not cause of action-accrues in his favour. He may therefore, without taking pre-emptory action in exercise of his such right under clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under clause (b) of Section 138 he forfeits such right of in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. But, once he gives a notice under clause (b) of Section 138 he forfeits such right of in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of receipt of the notice by the drawer, expires. " 8. The averments made in the complaint petition appears to be vague with respect to the legal notice and the successive legal notices issued by the opposite party No.2 for initiating a fresh cause of action is not permissible in the eye of law. It further appears that except first notice, all the successive notices were given beyond the statutory period of 30 days. Even if it is assumed that the complaint case was instituted within time, taking into consideration the 3rd notice dated 4.2.2005 but the same would also not be in accordance with law in view of the fact that the cheque was dishonoured on 12.10.2004 and such notice was issued beyond the period of 30 days as prescribed in the statute. In either of the situations, in the complaint case the technical requirement of the Negotiable Instruments Act has not been followed and in such circumstances therefore, continuance of the criminal proceeding as against the petitioner would be an abuse of process of court. 9. Accordingly, this application is allowed and the entire criminal proceeding in connection with Complaint Case No. 210 of 2005 including the order dated 14.6.2005 passed by learned Judicial Magistrate, 1st Class, Ranchi, whereby and whereunder, cognizance has been taken for the offence punishable u/s 138 of the Negotiable Instruments Act, is hereby quashed and set aside.