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2022 DIGILAW 241 (JHR)

Md. Ali Ansari v. State of Jharkhand

2022-03-02

SANJAY KUMAR DWIVEDI

body2022
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Sanjeev Thakur, learned counsel appearing for the petitioner, Mr. Sanjay Kumar Srivastava, learned A.P.P. for the State and Mr. Abhijeet Kumar Singh, learned counsel appearing for the O.P. No. 2. 2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 16.12.2013, in connection with B.S. City P.S. Case No. 323 of 2013 corresponding to G.R. No. 1297 of 2013, pending in the Court of learned Judicial Magistrate, 1st Class, Bokaro. 4. The prosecution case as per the complaint is that the accused persons having raiyat land admeasuring one acre one decimal covering ten plots of four khata number in village Nawadih approached the complainant for selling of one acre one decimal land for which complainant gave accent and it is alleged that on 01.07.2010 accused persons signed a deed of commitment on non judicial paper, finalizing the rate of land as Rs. 45,000/- per decimal and receive Rs. 2,50,000/- as advance from the complainant. Again they will register the agreement period from 01.07.2010 to 30.11.2010, but even expiry of five months on 31.11.2010 accused persons failed to execute the sale deed in favour of the complainant, for which complainant gave several reminder to the accused. It is alleged that in addition to above money Md. Ali Ansari received Rs. 11,50,000/- between 05.08.2010 to 15.01.2011, but he failed to register the said plots in favour of the complainant and as such accused persons have cheated the complainant. It is alleged that on 16.12.2011 the complainant lawyer sent a legal notice to the accused persons and in response of that accused persons replied on 31.12.2011 and refuses to register the land in question as because they have cancelled the agreement made on 01.02.2011. The complainant gave another legal notice on 09.01.2012, no reply was given by the accused persons. Again a legal notice was served on 23.04.2012 and in reply to legal notice dated 23.04.2012 they sent a reply on 07.05.2012 denying all the point mentioned in the legal notice and sent Rs. The complainant gave another legal notice on 09.01.2012, no reply was given by the accused persons. Again a legal notice was served on 23.04.2012 and in reply to legal notice dated 23.04.2012 they sent a reply on 07.05.2012 denying all the point mentioned in the legal notice and sent Rs. 3,00,000/- only by two separate cheques bearing No. 060664 dated 07.05.2012 for Rs. 2,50,000/- and cheque no. 639898 dated 07.05.2012 for Rs. 50,000/- of S.B.I. Pupunki Branch. The complainant deposited two cheques in his Vijaya Bank but both the cheques were returned by the Vijaya Bank on 12.07.2012 due to in-sufficient funds. As such accused persons committed offence under Section 406 and 120-B of I.P.C. 5. The aforesaid complaint was sent to the police under Section 156(3) Cr.P.C. by the learned Magistrate, pursuant thereto the FIR has been registered and charge-sheet has been submitted under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act). 6. Learned counsel appearing for the petitioner submits that the cognizance order is cryptic one and no requirement as envisaged under Sections 138 and 142 of the Act have been discussed in the said cognizance order. He submits that the aforesaid Act is a special law and only on the basis of the complaint case, the prosecution can be launched and there was no requirement of registering the FIR. 7. Mr. Abhijeet Kumar Singh, learned counsel appearing for the O.P. No. 2 submits that there is no illegality in the impugned order and on the basis of the complaint, the learned Magistrate referred the matter to the police and the charge-sheet has been submitted and this petition is fit to be dismissed. 8. In view of the submission of the parties, the Court has gone through the materials available on record. In the cognizance order dated 16.12.2013, the requirement with respect to Sections 138 and 142 of the Act has not been dealt with and by putting the word cognizance under Section 138 of the Act in the blank space, the cognizance has been taken against the petitioner. In the cognizance order dated 16.12.2013, the requirement with respect to Sections 138 and 142 of the Act has not been dealt with and by putting the word cognizance under Section 138 of the Act in the blank space, the cognizance has been taken against the petitioner. It has to be disclosed in the cognizance order, date of return of cheque, the date of notice and failure to pay the amount in question and the date disclosing the cause of date of complaint to be filed, however, this aspect of the matter has not been considered by the learned Magistrate in the order, taking cognizance under Section 138 of the Act. 9. It has been disclosed in the complaint that the complaint was filed on 26.10.2012 and the cheque in question was returned on 12.07.2012 and the first notice was issued upon the accused on 23.04.2012. It appears that before receiving of the returned cheque, the first notice has been issued on 23.04.2012 and after return of the cheuqe the case is required to be filed within 45 days of receiving the cheque returned back. It is quite clear the mandatory provisions under the Act have not been followed. 10. Section 142(1)(a) of the Act inter-alia stipulates that a complaint regarding the commission of offence under Section 138 must be made within one month of the date, on which the cause of action arises under Clause-(c) of the proviso to Section 138. 11. The complaint was filed on 26.10.2012 after six months delay, wherein the period, which was required to be filed within 45 days in view of Clause-(c) of the Proviso to Sections 138 and 142 of the Act. There is no valid explanation for condoning such a long delay is offered and in the cognizance order, this aspect of the matter has not been discussed. Moreover the cognizance has been taken by the said order, wherein the word cognizance has been filled up in the blank space, which shows that there is non-application of judicial mind in taking the cognizance under Section 138 of the Act. 12. Moreover the cognizance has been taken by the said order, wherein the word cognizance has been filled up in the blank space, which shows that there is non-application of judicial mind in taking the cognizance under Section 138 of the Act. 12. Section 138 of the Act stipulates that the payee of the cheque must give a notice in writing to the drawer of the cheque within 30 days from the receipt of the information by him from the bank regarding the return of the cheque as unpaid and the notice must contain a demand for the payment of the amount due on the cheque and upon the receipt of the notice if the drawer of the cheque fails to make payment within 15 days of the receipt of the notice, prosecution could be launched within one month thereafter. 13. In view of the above facts and the reasons assigned, the cognizance order is bad in law. Accordingly, the order taking cognizance dated 16.12.2013, in connection with B.S. City P.S. Case No. 323 of 2013 corresponding to G.R. No. 1297 of 2013, pending in the Court of learned Judicial Magistrate, 1st Class, Bokaro, is hereby, quashed. 14. This petition is disposed of.