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PATNA HIGH COURT
Ashwani Kumar Singh, J.
Vishwanath Chaudhary @ Vishwanath Prasad Chaudhary and Ors. —Petitioners
versus
State of Bihar and Ors. —Opp. Parties
Criminal Miscellaneous No.30357 of 2013
Decided on 6.4.2017
Counsel for the Parties:
For the Petitioners: None
For the Opp. Party: Mr. Umesh Lal Verma, APP
For the Opp. Party No.2:Mr. Viveka Nand Singh, Advocate
IMPORTANT POINT
No complaint can be filed for an offence under Section 138 NI Act unless period of 15 days has elapsed.
Headnote:Negotiable Instruments Act, 1881—Section 138—Indian Penal Code, 1860—Section 420—Criminal Procedure Code, 1973—Section 482—Dishonour of cheque—Premature complaint—No complaint can be filed for an offence under Section 138 NI Act unless period of 15 days has elapsed—Any complaint before expiry of 15 days from date on which notice has been served on drawer/accused is no complaint at all in eye of law—Admitted case of complainant is that complaint was filed on 13th day of issuance of notice to accused persons—No cognizance could have been taken against petitioners under Section 138 of N.I. Act—Once complainant himself admits that part of amount taken as loan was returned in several installments, it cannot be inferred from any angle that petitioners had dishonest intention right from beginning—Magistrate grossly erred in taking cognizance of offences against petitioners and summoning them to face trial under Section 420 of IPC and Section 138 of N.I. Act—Complaint case quashed. (Paras 10, 11, 15 to 18)
Result: Petition dismissed.
Ashwani Kumar Singh, J.—Despite repeated calls, none appears on behalf of the petitioners. Learned counsel for the State and learned counsel for the opposite party no.2 are present.
2. Heard learned counsel for the opposite parties and perused the record.
3. This application under Section 482 of the Code of Criminal Procedure (for short Cr.P.C.) has been filed for quashing the order dated 14.03.2012 passed by the learned Chief Judicial Patna High Court Cr. Misc. No.30357 of 2013 dt.06-04-2017 Magistrate, Vaishali at Hajipur in Complaint Case No.C1-338 of 2012 whereby, finding a prima facie case to be made out under Section 420 of the Indian Penal Code (for short IPC) and Section 138 of the Negotiable Instruments Act, 1881 (For short N.I. Act), the petitioners have been summoned to face trial.
4. The aforesaid complaint case was filed by the opposite party no.2 Ashok Kumar Jha alleging therein that the accused persons were known to him from much before. In the year 2007 they took a friendly loan of Rs.3,80,000/- from him for purchasing a Bolero vehicle. They returned Rs.1,30,000/- in various installments and promised to pay the balance amount within one month. After repeated request, on 25.12.2011, petitioner no.3 Gita Chaudhary handed over a cheque of Rs.2,50,000/-, which was deposited by him in his bank account on 29.12.2011 but the Bank informed on 06.01.2012 that due to insufficiency of fund the cheque could not be honoured. A legal notice was sent to the accused persons on 24.01.2012 but they failed to pay the amount.
5. On the basis of the aforesaid allegation, the complaint under Section 200 of the Cr.P.C. was filed in the court of Chief Judicial Magistrate, Vaishali, Hajipur. The complainant was examined on solemn affirmation and two witnesses, namely, Shatrughan Jha and Vijay Vikram were examined under Section 202 of the Cr.P.C. in course of inquiry whereafter the petitioners were summoned to face trial for the offences punishable under Section 420 of the IPC and Section 138 of the N.I. Act.
6. On perusal of the record as also on hearing learned counsel for the opposite party no.2, it would be evident that notice regarding dishonor of cheque was sent on 24.01.2012 and the complaint in question was filed on 06.02.2012, which would mean that the complaint was filed only after 12 days of the notices having been sent by the complainant to the accused persons. From perusal of the complaint, it would also be evident that a vague statement has been made that notices were sent to the accused persons.
7. In order to appreciate the legality of the order impugned, at this stage, it would be apposite to refer to Section 138 of the N.I. Act, which reads as under:”—
138. Dishonor of cheque for insufficiency, etc., 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 honor 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 extend to one year, or with fine 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, whichever 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
