Samir Gupta Vs. State of Jharkhand and anr. - Court Judgment

D.K. Sinha, J.

1. The petitioner, above named, has preferred this petition under Section 482 of the Code of Criminal Procedure for quashment of the entire criminal prosecution arising out of C.P. Case No. 276 of 2004 including the impugned order dated 10.1.2005, whereby and whereunder, cognizance of the offence under Section 138 of the Negotiable Instrument Act, 1881 (in short N.I. Act) was taken against him, presently pending in the court of Judicial Magistrate, 1st Class, Bokaro.

2. The prosecution story as contained in C.P. Case No. 276 of 2004 in brief is that the opposite party No. 2-complainant being a business man rendered service to the company of the petitioner, 'Samteeh Infonet Ltd' and had done development work as promoter in the said company within the territory of the State of Jharkhand. The accused- petitioner, Samir Gupta was the Director whereas the accused No. 2 Alok Gupta was the Managing Director of the said company (in short S.I Ltd.). It is stated further in the complaint that the petitioner had to make payment of Rs. 9,50,000/-(Rupees nine lakhs fifty thousand) to the complainant for the services rendered by him and for that it was stated that three cheques in the following manner were presented to him by the petitioner on 15.10.2003:

Cheque No. Amount.178260 Rs. 5,00,000/-178261 Rs. 50,000/-178262 Rs. 4,00,000/-

drawn on Bank of India, Greater Kailash-II Branch, New Delhi. All the three cheques were account payee total to the tune of Rs. 9,50,000/-. The complainant-opposite party No. 2 presented the aforesaid cheques for encashment in his account with Punjab National Bank, Sector-IV, B.S. City Branch, Bokaro on 27.01.2004 but the aforesaid cheques were not honoured due to 'insufficient fund' in the account of the petitioner and when it was pointed out by the complainant-opposite party No. 2 request was made to him by the petitioner to present the cheques after middle of March, 2004. It is alleged that when the complainant-opposite party No. 2 again presented the cheques for encashment, it met the same fate since could not be paid with the endorsement of drawee Bank 'in sufficient of fund'. Immediately a legal notice was served under registered cover with A/D intimating the petitioner about the dishonour of the cheques by the drawee bank. Inspite of the request and persuasion, no payment was made to the complainant-opposite party No. 2. On the other hand, in reply to the legal notice, it was stated by the petitioner that demand was false and frivolous. In this manner the complaint-opposite party No. 2 was deprived of his substantial amount at the hands of the petitioner, as alleged. It was further narrated in the complaint petition, filed on 21.7.2004 that though he was very prompt and took proper steps for realization of cheques amount for which several legal notice were sent to the petitioner in time, but on account of his sudden illness at Patna, he could not be able to move from 14.5.2004 to 20 7.2004 and hence prayer was made by filing separate petition for condonation of delay.

3. Mr. B.P. Sinha, the learned Counsel for the petitioner submitted that there was unexplained and inordinate delay in filing the complaint petition but the delay was condoned by the Judicial Magistrate Bokaro without notice to the petitioner. Mr. Sinha further submitted that as a matter of fact, when the complainant-opposite party No. 2 was denied any work in the petitioner's firm he became annoyed and on 30.9.2003 the opposite party No. 2 along with one of his friend came to the house of the petitioner and forcibly took three blank cheques from his possession extending threat that they would finish his entire family members. The matter was informed immediately to the Station House Officer, Vashant Vihar, New Delhi and to the Deputy Commissioner, Bokaro also.

4. On the point of law Mr. Sinha submitted that the cognizance of the offence under Section 138 of N.I Act against the petitioner is barred by law of limitation and the grounds for condonation of delay was erroneously considered by the court below without examining the veracity and trust-worthyness of the medical certificate. It was no where alleged in the complaint petition that the petitioner was in any manner incharge of the business situated at P-1/E-14, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044 and hence the question of proceeding against the petitioner does not arise. The complaint as well as taking cognizance therein is bad in law which hit by Clause (b) of Section 142 of the N.I. Act.

5. From perusal of the pleadings of the complaint petition as well as the petition filed on behalf of the petitioner under Section 482 of the Code of Criminal Procedure I find that there is allegation and counter allegation against each other which cannot be adjudicated and decided by invoking the inherent power of this court. The dispute under Section 138 of the N.I. Act 1881 is purely technical in nature which gives rise to criminal liability subject to different provisos of Section 138 and provisions of Section 142 of the Act.

6. Section 138 of the N.I. Act deals with dishonour of cheque for insufficiency of funds in the accounts:

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 ane 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, which ever 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 case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

7. Similarly Section 14 of the said Act is very relevant in the facts and circumstances of the case in so far as the taking cognizance under Section 138 of the N.I. Act is concerned by the court of competent jurisdiction:

Cognizance of offered - Notwithstanding any thing 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}

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.

8. From the plain reading of the pleadings of the petition under Section 482 of the Code of Criminal Procedure, the complaint petition vide C.P. Case No. 276 of 2004 as well as the counter affidavit filed on behalf of the opposite party I find that all the cheques of different denominations total to the tune of Rs. 9.50,000/- were issued on 15.10.2003 and according to the opposite party No. 2 two cheques vide No. 178260 and No. 178261 were returned unpaid on 20.3.2004 with the endorsement of Punjab National Bank, Bokaro 'in sufficient fund', whereas in so far as Cheque No. 178262 for a sum of Rs. 4,00,000/- is concerned, the date of return with the similar endorsement by the drawee bank has been shown on 21.8.2004. The complainant-opposite party No. 2 was required to give notice within 30 days of such return of the cheque as unpaid to the drawer of the cheques and when the drawer of such cheques fails to make payment of the, said amount to the complainant (payee) within 15 days of the notice, the complainant (payee) was required to file complaint within one month of the date on which the cause of action arose under the provisos of Section 138. But in the present case the complaint was filed on 21.7.2004 by the opposite party No. 2 after in ordinate delay beyond the period of limitation.

9. Admittedly, the proviso of Section added under Section 142(b) of the N.I. Act by Act 55 of 2002 w.e.f. 6.2.2003 is that the cognizance of offence may be taken by the court after the prescribed period, if the complainant (payee) satisfies the court that he had sufficient cause for not making complaint within such period.

10. I find from the counter affidavit filed on behalf of the opposite party No. 2 that the legal notice was sent to the petitioner herein on 5.4.2004 without acknowledgement due and the petitioner is silent in the present petition as to whether he is in receipt of legal notice or not. The question involved in the instant case is mainly based upon the question of fact which cannot be adjudicated and decided by invoking inherent power of this Court. I find from the order impugned dated 10.1.2005 that the cognizance of the offence has been taken by the Judicial Magistrate in C.P. Case No. 276 of 2004 and not by the C.J.M. Bokaro and that the delay in filing the complaint was condoned in mechanical manner without explaining the cause of his subjective satisfaction.

11. In the facts and circumstances of the case, I find that order impugned dated 10.1.2005 is unsustainable under the law and hence it is set aside with the direction to pass a fresh order with an opportunity to the petitioner to present his case before the appropriate order is passed under either Section 203 or Section 204 of the, Code of Criminal Procedure in accordance with law.

12. With the above observation this petition under Section 482 of Cr.P.C. is allowed.