Dismissed

Shyam Biharichand v. State and Anr.

Rajasthan HC30 May 2024CRLR/100/2002

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision petition seeking to challenge the discharge of the accused. The Court upheld the Sessions Court's order, finding that the offence under Section 138 of the Negotiable Instruments Act could not be made out due to the absence of a valid criminal complaint and statutory notice. The petition was dismissed.

What did the court decide?

The S.B. Criminal Revision Petition was dismissed as there was no force in the challenge to the discharge order.

Shyam Biharichand Vs State and Anr. — Cheque Dishonour | Rajasthan HC (2024)

¶1

[2024:RJ-JD:24821]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

S.B. Criminal Revision Petition No. 100/2002

¶4

Shyam Biharichand S/o Nemichand B/c Singhvi; Prop. A.S. Construction Company, Plot No.23, Industrial Area, Behind New Power House, Jodhpur

¶5

----Petitioner

¶6

Versus

¶7

The State Of Rajasthan 2. Vijay Kumar Jain S/o Shri Mohan Lal B/c Jain, R/o A-20, Kamla Nehru Nagar, Police Station Pratap Nagar, Jodhpur

¶8

----Respondent

¶9

For Petitioner(s)	: Ms. Yogita Mohnani
For Respondent(s)	: Mr. Mahipal Bishnoi,PP

¶10

HON'BLE MR. JUSTICE FARJAND ALI

¶11

	Order
ORDER PRONOUNCED ON	:::	30/05/2024
ORDER RESERVED ON	:::	28/02/2024

¶12

BY THE COURT:-

¶13

The petitioner has challenged the legality and correctness of the order dated 13.12.2001 passed by the learned Additional Sessions Judge No.2, Jodhpur in Criminal Revision No.53/2001 whereby the revision petition preferred by the respondent Vijay Kumar Jain was allowed and he was discharged from the offence under Section 138 of the Negotiable Instruments Act.

¶14

Bereft of elaborate details, succinctly stated the facts of the case are that the petitioner happens to be a complainant of the case. He lodged an FIR No.92 dated 02.08.1997 at the Police Station Basni for the allegation that some transaction took place between him and the Vijay Kumar Jain for which a cheque of

[2024:RJ-JD:24821]

[CRLR-100/2002]

(2 of 4)

Rs.78,000/- was also given to him but when the cheque was presented in the Bank for its encashment, the same got dishonored due to “ insufficiency of the amount ” in the account of the accused-respondent No.2. It was pleaded that the complainant was cheated.

¶19

After investigation, the police filed a charge sheet against the accused-respondent No.2 for offence under Section 420 of the IPC and Section 138 of the Negotiable Instruments Act as well. 4. Vide the order dated 13.10.2000, the learned trial Court observed that dispute between the parties was essentially related to a business transaction for which respondent gave a cheque to the petitioner and the same got dishonoured, therefore, the accused was exonerated from the offence under section 420 of the IPC, however, at the same time, the learned Magistrate had stated substance of accusation under Section 138 of the Negotiable Instruments Act to the petitioner.

¶20

Being aggrieved by the order dated 13.10.2000, the accused-respondent No.2 Vijay Kumar Jain preferred a revision petition bearing Revision Petition No.52/2001 before the Court of Sessions. The learned Court of revision heard the parties and whereafter observed that offence under Section138 of the NI Act was not made out in light of the legal impediment and, therefore, allowed the revision petition filed by the accused and discharged him from offence under Section 138 of the NI Act, hence the instant revision petition.

¶21

I have minutely gone through the niceties of the case. The accused-respondent was exonerated by the learned trial Court

[2024:RJ-JD:24821]

[CRLR-100/2002]

(3 of 4)

from the offence under Section 420 of the IPC vide order dated 13.10.2000 and a revision petition preferred by the State against the order was also dismissed. The petitioner has never challenged the said order, therefore, the order of discharging the accusedrespondent from the offence under Section 420 of the IPC has attained finality.

¶26

So far as the question of continuation of the proceeding under Section 138 of the NI Act is concerned, this Court feels that there are certain stipulation and legal mandate to initiate a proceeding under Section 138 of the NI Act. Besides the requirement that the cheque has to be given to the petitionercomplainant in lieu of any legal debt or discharge of liability, there is a further condition that upon dishonourment of the cheque for want of “ insufficiency of amount” in the account, the complainant is supposed to issue a notice within a one month to the drawer of the cheque informing him regarding non-encashment of the cheque as well as making a demand for repaying of the amount within a period provided under the Statute. If the amount is not paid after receipt of the notice and within stipulated period, a cause of action arises in favour of the complainant to sue him. He may file a complaint within a prescribed period before the Magistrate competent to take cognizance. 8. Here, in this case neither there is any notice on record regarding intimation to the accused in respect of dishonourment of cheque nor any criminal complaint was submitted. The offence under Section 138 of the NI Act is a bailable and non-cognizable offence. Meaning thereby, cognizance for the above offence can

[2024:RJ-JD:24821]

[CRLR-100/2002]

(4 of 4)

only be taken upon a criminal complaint filed under the Statutory guidance. It is a mandate of the law that a right to file a complaint for prosecution under Section 138 of the NI Act accrues in favour of the complainant only when despite service of notice and expiry of prescribed period, payment is not paid by the drawer of the cheque. There is a further stipulation that after arising out of the cause of action, the criminal complaint has to be submitted within a prescribed limit. Infact, no criminal complaint has ever been submitted by the complainant as per the legal provisions; a cognizance for offence under Section 138 of the NI Act can be taken only upon filing of a criminal complaint by the complainant within the statutory period. Observing the above, the learned Court of revision has discharged the accused-respondent which is absolutely in consonance with the provision of law, therefore, I see no reason to interfere in it.

¶31

Accordingly, there is no force in the instant revision petition, the same is hereby dismissed.

¶32

Record of the case be sent back forthwith.

¶33

(FARJAND ALI),J

¶34

3-Mamta/-

Shyam Biharichand v. State and Anr.

Case brief

What is this about?

What did the court decide?

Shyam Biharichand v. State and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vikas Pandit Vs State of Rajasthan

Ghisaram Vs State and Anr.

Dharamchand @ Dharampal Vs State of Rajasthan

Harish Vs State of Rajasthan

Gopal Vs State of Rajasthan

Mangu Nath @ Mangi Nath Vs State of Rajasthan