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2022 DIGILAW 288 (JHR)

Md. Rais Ansari v. State of Jharkhand

2022-03-10

SANJAY KUMAR DWIVEDI

body2022
JUDGMENT : 1. Heard Mr. Manoj Kumar Choubey, the learned counsel appearing for the petitioner, Mr. Shabad Eqbal, the learned counsel appearing on behalf of the O.P.No.2 and Mr. Ashok Kumar and Mrs. Nehala Sharmin, the learned counsel appearing on behalf of the respondent State in respective cases. 2. In these two petitions, question of facts and law are involved and that is why both the petitions have been heard together with the consent of the parties. Since two cheques were issued by the O.P.No.2, that is why two complaint cases have been filed which is the subject matter in these petitions. 3. These petitions have been filed for quashing the order taking cognizance dated 03.11.2017 in connection with Complaint Case No.3389/2017 in Cr.M.P.No.4227/2018 and Complaint Case No.3390/2017 in Cr.M.P. No.4257 of 2018 whereby cognizance under section 138 of Negotiable Instruments Act has been taken against the petitioner in both the cases. The cognizance order in both the cases is same. 4. The complaint case was filed by the O.P.No.2 stating therein that, the accused in order to discharge his liability had issued an account payee cheque to the complainant being cheque no.006048 dated 27.07.2017 of Rs.1,80,000/- drawn on Bank of India Arsandey Branch, Ranchi. The complainant deposited the said cheque in his account maintained with AXIS Bank, Kanke Raod Branch Ranchi but the cheque was returned by the accused Banker due to the reason ”Fund insufficient” and the complainant came to know about the said fact when his Banker namely AXIS Bank handed over the return cheque alongwith cheque return memo on 29.07.2017 with an information the accused did not have any sufficient fund in his account no.589510110001421. Thereafter the complainant given a demand notice sent through his Advocate to the accused on 09.08.2017 through speed post of India Post. The notice has been served upon the accused on 12.08.2017 but the accused did not pay the cheque amount to the complainant even till filing of the present complaint. As the accused did not pay the cheque amount till date, the complainant is left with no option but to file the present complaint. The notice has been served upon the accused on 12.08.2017 but the accused did not pay the cheque amount to the complainant even till filing of the present complaint. As the accused did not pay the cheque amount till date, the complainant is left with no option but to file the present complaint. The accused has knowingly and intentionally issued the cheque to the complainant for the said amount although the accused has fully aware that no sufficient amount in his Bank Account no.589510110001421, thereafter the aid cheque issued by the accused, the accused has committed an offence punishable u/s 138 of Negotiable Instrument Act. The intention of the accused since beginning to cheat the complainant and thereby the accused issued the said cheque which has been bounced due to insufficient fund in the Bank Account of the accused. 5. Mr. Choubey, the learned counsel appearing for the petitioner in both the cases submits that there was delay of 8 days in filing the complaint case and inspite of that, in absence of any condonation petition in view of the amended provision of the Negotiable Instruments Act, the cognizance has been taken. According to him, in view of transmission of legal notice, cheque return and statutory provision under section 138(c) and 142(b) of Negotiable Instruments Act which was required to be filed on 11.09.2017. He further submits that in the complaint, there is no disclosure what was the nature of debt which is one of the condition precedent for filing complaint under section 138 of the Negotiable Instruments Act. 6. Per contra, Mr. Shadab Eqbal, the learned counsel appearing on behalf of the O.P.No.2 in both the cases, submits that there is no delay and the case has been filed well within the time. 7. Both the counsels, the learned counsel for the petitioners as well as the learned counsel appearing for the O.P.No.2 have relied in the case of “K.S.Joseph v. Philips Carbon Black Ltd. & Anr.”, 2016 11 SCC 105 . Mr. Choubey, the learned counsel appearing on behalf of the petitioners relied on paragraph nos. 5 and 6 of the said judgment and Mr. Shadab Eqbal, the learned counsel appearing on behalf of the O.P.No.2 has relied on paragraph no.5 of the said judgment, which are quoted hereinbelow: “5. In view of discussion made above, the plea based on Section 200 CrPC is rejected as untenable. 5 and 6 of the said judgment and Mr. Shadab Eqbal, the learned counsel appearing on behalf of the O.P.No.2 has relied on paragraph no.5 of the said judgment, which are quoted hereinbelow: “5. In view of discussion made above, the plea based on Section 200 CrPC is rejected as untenable. The other plea relating to delay of 62 days and taking of cognizance without issuing notice to dispense with such delay is however found to have substance. The relevant provision under Section 142 of the Act requires making of the complaint within one month of cause of action arising on account of non-compliance with the demand in the notice to make payment within 15 days. According to the appellant the notice was dated 3-2-2006 alleging nonpayment of two cheques each for Rs 1,80,000. Allegedly the appellant had sent a reply denying his liability through a reply dated 20-2-2006. The complaint was filed on 24-5-2006. Prima facie, in view of the aforesaid dates the complaint was beyond the permissible period. No doubt the Court has been empowered to take cognizance even after the prescribed period but only if the complainant satisfies the Court that he had sufficient cause for not making the complaint within the prescribed period. 6. On the basis of order-sheet of the Court of Magistrate it has been shown that initially summons were ordered to be issued to the accused on 5-12-2006 after recording a single sentence that the complainant was represented. Since proper steps were not taken summons appear to have been re-issued at the correct address on 22-10-2011. The orders of the Magistrate do not show any application of mind to the issue of delay nor has delay been condoned before issuance of summons. The ordersheet does not show any application of mind to the fact that the accused was shown to be residing at a place beyond his jurisdiction and therefore an enquiry or investigation may be required on account of amendment in Section 202 CrPC inserted by Act 25 of 2005, effective from 23-6-2006. The relevant part of Section 202 CrPC is reproduced hereinbelow: “202. The relevant part of Section 202 CrPC is reproduced hereinbelow: “202. Postponement of issue of process.—(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided.…” 8. It is an admitted fact that it is not in dispute that the cheque was returned on 29.07.2017, notice for payment by way of legal notice was issued on 09.08.2017. The petitioner has received the notice on 12.08.2017 and the complaint was filed on 20.09.2017. It has been discussed in the order taking cognizance. For correct appreciation of the limitation, here the Court is required to look into section 138 of the Negotiable Instruments Act alongwith the proviso and sub section (b) of section 142 of Negotiable Instruments Act. The proviso to section 138 Negotiable Instruments Act is quoted hereinbelow: “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; and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the as 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.” Sub-section(b) to section 142 of the Negotiable Instruments Act stipulates as under: “142.....(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” 9. On perusal of sub-section(b) of section 142 of the Negotiable Instruments Act, it is crystal clear that the complaint is required to be made within one month of the date on which the cause of action arose. 10. The proviso (c) of section 138 of Negotiable Instruments Act speaks that for 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, complaint is required to be filed. Thus, in view of the above date, which has been discussed here, it is crystal clear that 15 days’ time completed on 26.09.2017 and the complaint was filed on 20.09.2017. Thus, it was within the time. The contention of the learned counsel for the petitioner with regard to limitation of 8 days is not substantial and, accordingly, there is no illegality in the cognizance order. 11. With regard to not disclosure of nature of debt as argument of Mr. Choubey, the learned counsel for the petitioner that in the complaint, there is no averments of date or other liability is concerned, this is subject matter of trial and this factual aspect which can be led by the parties in the trial. 12. In view of the above reasons and the analysis, these petitions [Cr.M.P.No.4227 of 2018 and Cr.M.P.No.4257 of 2018] are dismissed.