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2018 DIGILAW 422 (ORI)

Shiva Kumar Santuka v. Govinda Chandra Das

2018-04-16

S.K.SAHOO

body2018
JUDGMENT S.K. Sahoo, J. - This is an application under section 482 of the Code of Criminal Procedure, 1973 filed by the petitioner Shiva Kumar Santuka challenging the impugned order dated 13 .09.2007 passed by the learned Sub-divisional Judicial Magistrate, Sadar, Cuttack in ICC. Case No. 737 of 2007 in taking cognizance of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as "N.I. Act"). 2. It appears that on the complaint petition filed by the opposite party Govinda Chandra Das, the power-of-attorney holder of one Kiran J. Saha before the learned ( S.D.J.M , Sadar, Cuttack, I.C.C. No 737 of 2007 was registered. 3. It is the case of the complainant that he is the power-of-attorney holder of one Kiran J. Saha to handle the bank accounts and to receive and draw the cheques and other matters as mentioned in the power-of-attorney and he was also working as accountant under the firm of Kiran J. Saha. The family of Kiran J. Saha and the family of the petitioner were friends and both were business men families. Due to shortage of funds, the petitioner approached the complainant-opposite party for a loan of Rs. 2,00,000/- (rupees two lakhs) to purchase his business materials for the Dussehra business. Accordingly, on 11.08.2006 as per the direction of Kiran J. Saha, the complaint-opposite party handed over a sum of Rs. 1,00,000/- (rupees one lakh) as loan in presence of the witnesses with a condition that the petitioner shall refund the amount immediately after Dussehra Puja and Kali Puja is over. Since even after the stipulated period of time, the petitioner failed to refund the loan amount, the opposite party met him and asked him for repayment of the loan amount. After several approach, the petitioner handed over a cheque of Rs. 1,00,000/- (rupees one lakh) on 30.12.2006 drawn on Urban Co-operative Bank, Tinikonia Bagicha, Cuttack After getting the cheque, on the advice of Kiran J. Saha, the opposite party presented the said cheque with his Banker, U.T.I. Bank, Cuttack on 11.04.2007. On 27.04.2007 the complainant-opposite party received intimation from the Bank regarding dishonour of the cheque on the ground of insufficiency of fund. On the very next day, the complainant met the petitioner and told him about the dishonour of cheque. On 27.04.2007 the complainant-opposite party received intimation from the Bank regarding dishonour of the cheque on the ground of insufficiency of fund. On the very next day, the complainant met the petitioner and told him about the dishonour of cheque. The petitioner assured the complainant to repay the amount within fifteen days but since the amount was not repaid, legal notice was sent by registered post on 21.05.2007 to the petitioner which was received by him on 24.05.2007. In spite of receipt of notice, since the petitioner did not pay the cheque amount, the complaint petition was filed on 06.07.2007. 4. The learned Magistrate after perusing the complaint petition, initial evidence affidavit and documents filed by the complainant, came to hold that the prima facie material for commission of offence under section 138 of the N.I. Act is well made out and accordingly, took cognizance of such offence. 5. Mr. Surendra Kumar Rout, learned counsel appearing for the petitioner contended that since the petitioner is the power-of-attorney holder of Kiran J. Saha, the complaint petition at his instance is not maintainable. He drew attention of this Court to paragraph-9 of the 482 Cr P.C. application wherein it is mentioned that since the complainant intimated regarding the dishonour of cheque to the petitioner on 28.04.2007 and the complaint petition was filed on 06.07.2007, it was beyond the period of limitation as prescribed under section 142 of the N.I. Act and therefore, the order of taking cognizance is barred by limitation and the same is liable to be quashed. 6. None appears on behalf of the opposite party. 7. On perusal of the complaint petition, it appears that intimation was received by the complainant from the Bank regarding dishonour of the cheque on the ground of insufficiency of fund on 27.04.2007 and thereafter, the complainant met the petitioner for repayment of the cheque amount and the petitioner assured the complainant to repay the amount within fifteen days but since within fifteen days he did not pay that amount, legal notice was sent by registered post to the petitioner on 21.05.2007 and it was received by the petitioner on 24.05.2007. Clause (b) of the proviso to section 138 of the N.I. Act states that the payee or the holder in due course of the cheque, as the case may be, has to make 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. 8. In this case, since the intimation was received from the Bank on 27.04.2007 regarding dishonour of cheque on the ground of insufficiency of fund and legal notice was sent by the registered post to the petitioner on 21.05.2007, therefore, it is within the stipulated period of time as per the clause (b) of the proviso to section 138 of the N.I. Act. Clause (c) of the proviso to section 138 of the N.I. Act states that if the drawer of such cheque fails to make 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 day of the receipt of the notice then the cause of action will arise in terms of section 142 of the N.I. Act and the complaint petition has to be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the N.l Act. 9. In the present case, the notice dated 21.05.2007 was received by the petitioner on 24.05.2007 and since within the stipulated period of fifteen days of the receipt of the notice as envisaged under clause (c) of the proviso to under section 138 of the N.I. Act, the payment of the cheque amount was not made, the cause of action arose and the complaint petition can be filed within one month of the date on which the cause of action arose in view of the section 142(1)(b) of the N.I. Act. The complaint petition was filed on 06.07.2007 and therefore I am of the view that it was well within the period of limitation. The learned Magistrate has not committed any illegality in acting upon such complaint petition filed by the opposite party-complainant. The complaint petition was filed on 06.07.2007 and therefore I am of the view that it was well within the period of limitation. The learned Magistrate has not committed any illegality in acting upon such complaint petition filed by the opposite party-complainant. Accordingly, the contention of the learned counsel for the petitioner that the complaint petition was beyond the period of limitation is totally misconceived. 10. Coming to the point raised by the learned counsel for the petitioner regarding the locus standi of the opposite party to file the complaint petition, it is seen that in the complaint petition, it is clearly mentioned that the complainant-opposite party is the power-of-attorney holder of Kiran J. Saha and he was authorized to handle the bank account, receive and draw the cheques and other matters and he was working as the accountant under the firm of Kiran J. Saha. 11. Law is well settled that a power-of-attorney holder of a payee or a holder in due course, as the case may be, can make a complaint under section 142 of the N.I. Act. In view of specific provision under section 2 of the Powers-of-Attorney Act, 1882, it would have to be presumed as per law that the complaint lodged by the holder of power-of-attorney, is a complaint lodged by the payee. There nothing in Section 142 of the N.I Act which makes it mandatory on the complainant to file the complaint petition personally. The complaint of dishonour of cheque can even be filed by the holder of power-of-attorney of the payee in the name and on behalf of the payee. 12. Therefore, the contention of the learned counsel for the petitioner that the complainant-opposite party has no locus standi to file the complaint petitions not sustainable. Since both the contentions raised by the learned counsel for the petitioner are not legally acceptable, therefore, I am not inclined to interfere with the impugned order. 13. Accordingly, the CRLMC application being devoid of merits, stands dismissed.