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ABHAY S. OKA, UJJAL BHUYAN
Rekha Sharad Ushir – Appellant
Versus
Saptashrungi Mahila Nagari Sahkari Patsansta Ltd. – Respondent
Key Points: - Recording complainant's statement on oath under Section 200 Cr.P.C. is not an empty formality; its object is to ascertain truth by examining complainant and witnesses (!) (!) . - Magistrate must examine complainant on oath under Section 200 Cr.P.C., reduce statement to writing, and apply mind to check sufficient grounds before issuing process under Section 204(1) (!) (!) . - Litigant suppressing material facts or making false statements cannot seek justice; such cases must be thrown out of court (!) . - Complainant suppressed letters dated 28th November 2016 and 13th December 2016 demanding loan documents, making false claim of no reply to demand notice (!) (!) (!) . - Suppression of material documents in complaint and Section 200 statement constitutes abuse of process; complaint and cognizance order quashed (!) (!) (!) . - Respondent's later claim of supplying documents via additional affidavit is afterthought, not pleaded in complaint (!) . - High Court's order dismissing challenge to process issuance set aside; appeal allowed (!) (!) . - Respondent's civil remedies for recovery remain open (!) .
JUDGMENT :
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The Appellant is the accused in Criminal Case No. 648 of 2016 pending before the Judicial Magistrate First Class, Kalwan (for short, ‘the JMFC’). The complaint was filed by the respondent before the JMFC alleging the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’) on the basis of the dishonour of a cheque, which was allegedly issued by the appellant in favour of the respondent, a Credit Co-Operative Society.
2. It is alleged by the respondent that the appellant had obtained a loan of Rs. 3,50,000/- from the respondent on 3rd July 2006 through an overdraft facility. At the time of obtaining the loan, she issued two security cheques bearing Nos. 010721 and 010722. Due to a default in repayment, the respondent deposited the first cheque (No.010721) drawn on 10th February 2007 for the amount of Rs.3,75,976/-, which was dishonoured. Following a legal demand notice from the respondent’s advocate, the respondent filed Criminal Case No. 135 of 2007 under Section 138 of the NI Act on 4th April 2007. The appellant paid the cheque amount before the JMFC, Kalwan Court, on 23rd Sep
(1) Cognizance of offence – Recording complainant's statement on oath under Section 200 of Cr.P.C. is not an empty formality – Object of recording complainant's statement and witnesses is to ascertai....
Sending replacement cheque in closed cover refused by payee does not amount to payment under Section 138 NI Act Proviso (c) as payee must possess money; compounding requires complainant's consent.
(1) Incriminating circumstances, regarding which no explanation has been called from accused, cannot be used against him.(2) Dishonour of cheque – Unless part payment is endorsed on cheque as per Sec....
A cheque issued as security does not negate potential liability under S.138 of the Negotiable Instrument Act if essential legal conditions are met.
Payment of a part or whole of the sum represented on a cheque between the period when the cheque is drawn and when it is encashed upon maturity reduces the legally enforceable debt on the date of mat....
Conviction under Section 138 of the Negotiable Instruments Act affirmed, emphasizing the necessity of due process in criminal trials and the validity of a Magistrate's authority.
Criminal Law - Dishonored of Cheque - Notice - It is well settled principle of law that notice has to he read as a whole. In notice, demand has to be made for “said amount” i.e. cheque amount. If no ....
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