Allowed

Neelam Kumar Singh v. State Of Bihar and Anr.

Patna HC3 Jan 2014CR. MISC./7983/2013

Case brief

AI extract

What is this about?

The High Court allowed a criminal miscellaneous application to quash the order of a trial court that issued process under Section 138 of the Negotiable Instruments Act. The Court held that the lower court failed to inquire about the date of cheque presentation and return, and the delay from cheque issue to complaint barred cognizance.

What did the court decide?

The order dated 11.10.2012 passed by the Judicial Magistrate along with the prosecution of Complaint Case No. 91 C of 2012 against the petitioner is quashed. The application is allowed.

Neelam Kumar Singh Vs State Of Bihar and Anr. — Cheque Dishonour | Patna HC (2014)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA

¶2

Criminal Miscellaneous No.7983 of 2013

¶3

====================================================== 1. Neelam Kumar Singh S/O Sri Uday Narayan Singh Residence Of Tollapatti, P.O.- Hardi, P.S.- Pipara, District- Supaul. .... .... Petitioner/s Versus 1. The State Of Bihar Null 2. Mukul Prasad S/O Sri Mohan Prasad Singh Vill.- Diver, P.S.- Pandarak, Dist.- Patna .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Shashi Kant Kumar, Advocate For the Opposite Party/s : Mr. Madhuri Lata, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 3 03-01-2014 Heard learned counsel for the parties. The present application has been filed for quashing the order dated 11.10.2012 passed by the learned Judicial Magistrate Ist Class, Barh, Patna in Complaint Case No. 91 C of 2012 whereby the processes were directed to be issued after cognizance being taken under Section 138 of the Negotiable Instruments Act.

¶4

The prosecution case, as per the Complaint Case No. 91 C of 2012 filed by the complainant on 28.2.2012, is that the petitioner induced the complainant that if the complainant has land measuring 2000 sq.ft., on the roadside, the petitioner would get a branch office of State Bank of

¶5

Patna High Court Cr.Misc. No.7983 of 2013 (3) dt.03-01-2014

¶6

2/10

¶7

India, opened on the said land, in lieu of which the complainant would earn a handsome amount as rent, upon which the complainant offered his land bearing Plot No. 1144 having an area of 9 Katha, and thereafter on demand by the petitioner, an amount of Rupees fifty thousand was paid by the complainant to the accused persons. When no construction was made for pretty long time, the complainant demanded back his money. Thereafter, two cheques bearing numbers 01567 and 01563, worth Rupees Twenty Five thousand each drawn on Kosi Regional Development Central Cooperative Credit and Society Limited dated 30.4.2010 were issued in favour of the complainant. The complainant deposited the same in his account but the cheques were returned being dishonoured by the bank. Subsequently, legal notice was also given. Ultimately the complainant went to the house of the petitioner on 27.2.2012 when he was abused and threatened and thereafter the complaint was filed on 28.2.2012.

¶8

After examining the complainant on solemn affirmation and recording the statement of enquiry witnesses, the process was directed to be issued after cognizance being taken for the offences punishable under Section 138 of the Negotiable Instruments Act.

¶9

Patna High Court Cr.Misc. No.7983 of 2013 (3) dt.03-01-2014

¶10

3/10

¶11

It is submitted by the learned counsel for the petitioner that neither the date of deposit of the cheques nor the date of its return has been mentioned and admittedly, the cheque was issued on 30.4.2010. No notice was ever served upon the petitioner and as per the provisions of Section 138 of Negotiable Instruments Act, the cheque has to be presented within six months of the date on which it was drawn and notice has to be given within thirty days of the receipt of the information from the bank, regarding the return of the cheque as unpaid. Hence, no case under Section 138 of Negotiable Instruments Act is made out. Moreover, cognizance is barred under Section 142 of the Act.

¶12

It is submitted by the learned counsel for the complainant that the notice was given to the petitioner though it was not within the stipulated time and the accusation in the complaint petition was levelled under Sections 420,406 and 506/34 IPC and Section 138 of Negotiable Instruments Act but the process was issued after cognizance being taken only under Section 138 of Negotiable Instruments Act.

¶13

Considering the rival submission of the parties, it appears that the cheques were drawn on 30.4.2010 but neither the date of deposit nor the date of return of the cheques as

¶14

Patna High Court Cr.Misc. No.7983 of 2013 (3) dt.03-01-2014

¶15

4/10

¶16

unpaid has been mentioned in the complaint petition, nor the court has bothered to inquire about the same. For proper appreciation of the issue the provisions of Sections 138 and 142 of the N.I. Act are quoted hereunder:

¶17

“ 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:

¶18

Provided that nothing contained in this section shall apply unless----

¶19

(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;

¶20

(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

¶21

Patna High Court Cr.Misc. No.7983 of 2013 (3) dt.03-01-2014

¶22

5/10

¶23

unpaid; and

¶24

(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.

¶25

x x x

¶26

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

¶27

(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;

¶28

(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:

¶29

[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.]

¶30

(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.]”

¶31

From bare perusal of Section 138 of the N.I. Act, it is apparent that three conditions precedent must be fulfilled or satisfied for constituting an offence under Section 138 of the

¶32

Patna High Court Cr.Misc. No.7983 of 2013 (3) dt.03-01-2014

¶33

6/10

¶34

N.I. Act and unless the same is fulfilled, the taking of cognizance under Section 142 of the Negotiable Instruments Act, 1881 would be barred and the same has been well explained by the Apex Court in the case of MSR Leathers Vs. S. Palaniappan, reported in (2013) 1 Supreme Court Cases 177, in Paragraph nos. 12,13 and 14 in the following words:

¶35

“12. The proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonor of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have 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. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make 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 the information by him from the bank regarding the return of the cheque as repaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee as the case may be, to the holder in due course of the cheque

¶36

Patna High Court Cr.Misc. No.7983 of 2013 (3) dt.03-01-2014

¶37

7/10

¶38

within fifteen days of the receipt of the said notice. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses(a),(b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.

¶39

Section 142 of the Negotiable Instruments Act governs taking of cognizance of the offence and states with a non-obstante clause. It provides that 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, by the holder in due course and 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. In terms of clause (c) to Section 142, no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class is competent to try any offence punishable under Section 138.

¶40

A careful reading of the above provisions makes it manifest that a complaint under Section 138 can be filed only after cause of action to do so has accrued in terms of clause (c) of the proviso to Section 138 which, as noticed earlier, happens no sooner than when the drawer of the cheque fails to make the

¶41

Patna High Court Cr.Misc. No.7983 of 2013 (3) dt.03-01-2014

¶42

8/10

¶43

payment of the cheque amount to the payee or the holder of the cheque within 15 days of the receipt of the notice required to be sent in terms of clause(b) of the proviso to Section 138 of the Act.”

¶44

Hence, in view of the decision laid down by the Apex Court in the case of MSR Leathers (supra), admittedly cheque was given to the complainant on 30.4.2010, hence it can be presumed that the cheque was either issued on 30.4.2010 or prior to that, whereas the complaint has been filed on 28.2.2012, hence cognizance is barred under Section 142 of the Act.

¶45

It appears from the impugned order that the learned Magistrate has failed to even inquire from the complainant about the date of presentation of cheques and their return. Hence, the learned Magistrate has failed to discharge the duty before issuing process as held by the Apex Court in the case of Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others reported in (1998) 5 Supreme Court Cases 749 . Paragraph 28 of the judgment reads as follows:

¶46

“Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of

¶47

Patna High Court Cr.Misc. No.7983 of 2013 (3) dt.03-01-2014

¶48

9/10

¶49

course. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegation made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

¶50

While examining the complainant on solemn affirmation or recording the statement of enquiry witnesses, the courts are not bereft of the power to put questions. Section 165 of the Evidence Act provides that the Judge may, in order

¶51

Patna High Court Cr.Misc. No.7983 of 2013 (3) dt.03-01-2014

¶52

10/10

¶53

to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant, and may order the production of any document or thing to which neither the parties can make any objection but the learned Magistrate failed to even make enquiry from the complainant with regard to the date of bouncing of the cheque, hence, the pre-condition for constituting the offence under Section 138 of N.I. Act is absent in the present case, and thus the impugned order cannot be sustained.

¶54

Accordingly, in view of the above discussion the order dated 11.10.2012 passed by the learned Judicial Magistrate Ist Class, Barh, Patna including the entire prosecution of Complaint Case No. 91 C of 2012 with regard to the petitioner is hereby quashed.

¶55

This application is, accordingly, allowed.

¶56

(Dinesh Kumar Singh, J)

¶57

Anil/-

Neelam Kumar Singh v. State Of Bihar and Anr.

Case brief

What is this about?

What did the court decide?

Neelam Kumar Singh v. State Of Bihar and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Arun Mahto and Ors. Vs State Of Bihar and Anr.

Rajiv Kumar Agarwal Vs The State Of Bihar

Sanjiv Tiwari and Ors. Vs State Of Bihar and Anr.

Gauri Shankar Prasad and Anr. Vs State Of Bihar and Anr.

Ajit Kumar Mishra Vs The State Of Bihar

Hanuman Singh and Ors. Vs State Of Bihar and Anr.