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Allahabad High Court · body

2020 DIGILAW 364 (ALL)

Prem Sagar Soni v. State of U. P.

2020-02-04

RAM KRISHNA GAUTAM

body2020
JUDGMENT : RAM KRISHNA GAUTAM, J. 1. The applicant, by means of this application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with prayer to quash the impugned order dated 18.06.2012, passed by A.C.J.M. Court No. 11, Azamgarh in Complaint Case No. 6381 of 2011, under Section 138 N.I. Act, P.S. Sidhari, District Azamgarh. 2. Heard learned counsel for applicant, learned counsel for opposite party no. 2, learned A.G.A. for State and perused the record. 3. Learned counsel for applicant argued that opposite party no. 2 had taken Rs. 8,00,000/- as earnest money for making a sale of immovable property in favour of applicant on 10.09.2010 and an assurance for execution of sale deed was given within a week. On 18.09.2010 a further demand of Rs. 2,00,000/- towards consideration was made and it was denied. Money paid was demanded back. Opposite party no. 2 requested for grant of time for making repayment, but it was not paid back. Ultimately, on 05.10.2010 opposite party no. 2 issued two cheques, one of Rs. 2,00,000/- bearing No. 465182 and another of Rs. 1,00,000/- bearing No. 465183 with assurance for returning remaining Rs. 5,00,000/- in cash. These two cheques were presented before Allahabad Bank, Branch Daulatabad, District Azamgarh, which were dishonoured because of insufficient fund in account. This dishonour was communicated on 30.03.2011. A notice was issued to opposite party no. 2, but even after notice dated 21.05.2011, no response was made. Even after receipt of notice, an assurance was made for making repayment of entire amount within a month. Applicant, being an innocent person, waited for a month, but it was of no avail. Again a request was made, wherein assurance was being extended on every day. Ultimately, a complaint was filed on 04.07.2011 for offences punishable under Section 138 N.I. Act and it was rejected by trial court because of being time barred. It was abuse of process of law. Hence, this application with above prayer. 4. Learned counsel for opposite party no. 2 vehemently opposed the application with this contention that this proceeding under Section 482 Cr.P.C. is not maintainable, rather appeal under Section 372 Cr.P.C. with a leave to appeal under Section 378 Cr.P.C. ought to be filed by the applicant. 5. Learned A.G.A. has vehemently opposed the application. 6. 4. Learned counsel for opposite party no. 2 vehemently opposed the application with this contention that this proceeding under Section 482 Cr.P.C. is not maintainable, rather appeal under Section 372 Cr.P.C. with a leave to appeal under Section 378 Cr.P.C. ought to be filed by the applicant. 5. Learned A.G.A. has vehemently opposed the application. 6. From the very perusal of impugned order, it is apparent that this complaint was not filed within stipulated period under Section 142 N.I. Act. Notice, which ought to be issued within one month from date of receipt of dishonour of cheque, was not issued. It has been written in this application that cheque was dishonoured and communicated on 30.03.2011, but notice was issued on 21.05.2011. Whereas, Section 138 of N.I. Act constitutes offence if a cheque has been issued against existing liability or debt; this has been presented to the Bank within a period of six months or within period of its validity, whichever is earlier; it has been dishonoured owing to insufficiency of amount or amount arranged there for; a demand notice for payment of cheque amount is to be given to the drawer of the cheque within 30 days of the receipt of information by him from the Bank regarding return of cheque as unpaid and within 15 days of receipt of same, if payment is not being made, then and then only cause of action arises for filing of complaint for an offence punishable under Section 138 N.I. Act. Section 142 of N.I. Act provides a further limitation of one month for filing complaint from the date when cause of action has arisen. Section 142 of N.I. Act reads as under:- 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, 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. 7. 7. Meaning thereby, this period of one month may be extended provided complainant satisfies the Court that there was sufficient reason for not filing a complaint under such scheduled period. Whereas in present case there is no sufficient reason, except this that accused was making assurance for making payment, for which there was no evidence on record. Moreso, Section 138 of N.I. reads as under:- 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 or 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 section 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. (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. Explanation - For the purposes of this section "debt or other liability" means a legally enforceable debt or other liability. 8. Explanation - For the purposes of this section "debt or other liability" means a legally enforceable debt or other liability. 8. The notice is to be issued within 30 days form the date of receipt of dishonour information from the Bank concerned i.e. for a cause of action to arise for an offence punishable under Section 138 of N.I. Act, the condition precedent is issuing of notice of demand within 30 days from a receipt of information of dishonour and in present case no such notice was issued within 30 days. Admittedly, cheque was dishonoured and information was received on 30.03.2011 and notice was issued on 21.05.2011 i.e. much beyond above 30 days. This specific ingredient of offence was missing. Hence, there was no abuse of process of law by trial court in passing impugned order. 9. Jurisdiction of High Court under Section 482 Cr.P.C. is for ensuring end of justice and it can exercise that inherent jurisdiction in any case where it finds that subordinate court is doing abuse of process of law. Hence, argument of learned counsel for the opposite party no. 2 that this proceeding under Section 482 Cr.P.C. is not maintainable is also not tenable. 10. Accordingly, this application merits its dismissal. The application is dismissed as such.