Quashed

Rama Chandra Pradhan v. State

Orissa HC9 Apr 2018CRLMC/1358/2003

Case brief

AI extract

What is this about?

The presented the case of illegal cognizance taken by a Magistrate under Section 138 NI Act based on a police charge sheet rather than a complaint by the payee, as barred by Section 142. The court quashed the criminal proceedings citing civil nature and abuse of process.

What did the court decide?

Order of taking cognizance under Sections 420 IPC and 138 NI Act quashed, interim order vacated.

Rama Chandra Pradhan Vs State — Cheque Dishonour | Orissa HC (2018)

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CRLMC No.1358 of 2003

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09.04.2018

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Heard learned counsel for the petitioners. None appears on behalf of opposite party nos.1, 2 and 3 in spite of valid service of the notice.

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Learned counsel for the petitioners submits that the petitioners have obtained a lone of Rs.80,000/- and has not yet repaid the loan amount to the opposite party-Bank. The Bank filed Title Money Suit, i.e., 1 of 1997 for recovery of the amount before the learned Civil Judge (Senior Division), Aska and that suit was decreed. When the execution case was filed, the matter was referred to the Lok Adalat. In the Lok Adalat, compromise was effected between the parties and it was agreed that the petitioners would pay back a sum of Rs.80,000/- to the opposite party-Bank. Accordingly two cheques were signed by petitioner no.1 dated 30.6.2002 and 30.7.2002 for an amount of Rs.40,000/- each.

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Learned counsel for the petitioners further submits that the cheques were submitted to the Bank in question and they placed for the drawl of the same but the cheques were dishounered with the note “insufficient funds”. Lastly notice as required was issued by the opposite party-Bank. Thereafter, a complaint was filed before the learned court below, who sent the same to the police under Section 156(3) Cr.P.C. for registration and investigation of the case. After charge sheet was submitted under Sections 420/34 of IPC read with Section 138 of NI Act, the learned Magistrate took cognizance of the same, which is bad in law.

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Learned counsel for the petitioners further submits that the impugned order is challenged on the sole ground that the dispute is civil in nature where Section 420 of IPC is not warranted. Apart from this, she submits that Section 142 of NI

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Act clearly envisages that the Court cannot take cognizance of any offence without a complaint is filed by the payee or the holder in due course of the cheque. Since the learned Magistrate has sent the complaint for investigation of the case under Section 156 (3) Cr.P.C. and then basing on the charge sheet took cognizance of the offence, the same is barred in law in view of the bar under Section 142 of the NI Act and in view of the civil litigation between the parties.

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Considered the submissions of the learned counsel for the petitioner. On going through the materials placed before this Court, it appears that this matter arises out of civil litigation as the matter has been compromised between the parties in a civil proceeding and the present petitioners agreed to pay back the money and accordingly petitioner no.1 paid the cheques in question. So, the elements of Section 420 of IPC is remotely available in this case.

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As per the complaint petition, it appears that the complainant after submission of the complaint, requested the learned Magistrate to send the complaint for registration and for investigation of the Case under Section 156(3) of Cr.P.C. and the learned Magistrate did it as it appears from the impugned order dated 7.3.2003 which is placed below for reference:-

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“Order dated 7.3.2003

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C.S. No.55, dt.28.2.03 u/s.420/34 IPC/138 N.I. Act is received from the I.O. along with C.Ds. seizure list, Zimanama etc. Perused the FIR and other connected Police papers and I feel a prima-facie case u/s.420/34 IPC Section 148 N.I. Act is made out against the accd. Persons namely Rama Chandra Pradhan and Padmanava Pradhan. Hence cognizance is taken in the aforesaid sections. Office to issue summon to both the accd. persons fixing 22.4.03 for their appearance.”

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In view of the above order, it clearly shows that the learned Magistrate has taken cognizance of the offence under Section 138 of the N.I. Act on the police report filed by the Investigating Agency.

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Section 142 of the N.I. Act is placed below for reference:-

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“142 Cognizance of offences .— Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

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(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:

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[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.]

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(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.]”

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In view of the aforesaid provision, it is clear that cognizance of the offence under Section 138 of the N.I. Act can be taken basing on the complaint only but not on the police report. In view of the clear stipulation in the statute, the order of taking cognizance under Section 138 of the N.I. Act basing on the charge sheet is also equally bad in law.

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In terms of the above discussion, the Court is of the opinion that the order of taking cognizance of the offence under Section 420/34 of IPC read with Section 138 of the N.I. Act being illegal and improper. Hence, the entire order of taking cognizance is hereby quashed under Section 482 Cr.P.C. being abuse of the process of the Court.

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The CRLMC is disposed of accordingly.

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The interim order passed earlier stands vacated.

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Registry is directed to communicate this Court order along with the L.C.R. to the Court below by special messenger forthwith.

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Dr.D.P.Choudhury, J.

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Rama Chandra Pradhan v. State

Case brief

What is this about?

What did the court decide?

Rama Chandra Pradhan v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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