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2005 Supreme(Pat) 991
PATNA HIGH COURT
Navin Sinha, J.
Lakshmi Kant
Versus
State Of Bihar
Criminal Miscellaneous No. 29096 of 2003 ;
Decided On : NOVEMBER 18, 2005
The amendment making the offence compoundable and the inapplicability of Section 420 due to subsequent payment influenced the court's decision to quash the proceeding.
Headnote:
Negotiable Instruments Act - Cheque Dishonour - Section 138, Section 420 - Section 142(b), Section 138(c), Section 147 - The court quashed the proceeding against the petitioner in a complaint case related to cheque dishonour under Section 138 of the Negotiable Instruments Act and Section 420 of the Penal Code, citing the amendment making the offence compoundable and the inapplicability of Section 420 due to subsequent payment.
Fact of the Case:
The petitioner issued a cheque for hire charges of a vehicle, which was dishonoured. A complaint was filed under Section 138 of the Negotiable Instruments Act and Section 420 of the Penal Code. The petitioner challenged the order of cognizance, arguing about the limitation for initiating the complaint and the subsequent payment made.
Finding of the Court:
The court found that the offence under Section 138 of the Act had become compoundable by an amendment, and the allegations under Section 420 of the Penal Code were inapplicable due to subsequent payment. It concluded that continuing the prosecution would be an abuse of the process of law and quashed the proceeding and order of cognizance.
Issues: Limitation for initiating the complaint, applicability of Section 420 of the Penal Code, and the effect of subsequent payment on the prosecution.
Ratio Decidendi: The court considered the amendment making the offence compoundable, the inapplicability of Section 420 due to subsequent payment, and the nature of the allegations to conclude that continuing the prosecution would be an abuse of the process of law.
Final Decision: The court quashed the entire proceeding against the petitioner in the complaint case and the order of cognizance.
1. Heard learned Counsel for the petitioner and the learned Counsel for the State as also the learned Counsel appearing on behalf of opposite party no. 2.
2. The petitioner would be aggrieved by the order of cognizance dated 21.5.2002 as also the proceeding in Complaint Case No. 686(C) of 2002 pending before the Judicial Magistrate, 1st Class, Patna under section 138 of the Negotiable Instruments Act read with Section 420 of the Penal Code.
3. The short facts to be noticed would be that for hire charges of a vehicle the petitioner would have given a cheque on 15.12.2001 for a sum of Rs. 15,000/-which would have been deposited by the complainant in the bank on 7.1.2002 when he would have learnt of its being dishonoured due to insufficient fund on 9.1.2002. A notice would then have been sent to the petitioner on 11.1.2002 under Section 138(b) of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). The present complaint would then have been filed on 19.4.2002.
4. Learned Counsel appearing for the petitioner submitted that in terms of Section 142(b) read with Section 138(c) of the N.I. Act the complaint was to be initiated within one month from the date the cause of action would arise under Section 138(c) of the N.I. Act meaning thereby 15 days after the notice sent under Section 138(b) of the N.I. Act was received by the petitioner. It is submitted that though notices would have been sent within the requisite period under Section 138(b) of the N.I. Act the complaint would be completely silent with regard to the date on which notices would have been served on the petitioner. It is submitted that the satisfaction with regard to the limitation would have been a necessary condition of law before the cognizance could have been taken. In absence of necessary pleadings in this regard in the complaint the cognizance would be vitiated. In the alternative, it is submitted that in any event in absence of necessary pleadings in this regard the notice which was sent on 11.1.2002 would bo deemed to have been served on expiry of 30 days i.e. by 10th February, 2002. The normal presumption in law for service of a registered letter. He therefore submits that the complaint could well have been initiated within 30 days thereafter also meaning thereby till 10.3.2002. In the present case, the complaint would have been filed on 19.2.2003 clearly beyond the period of limitation. He relied on a judgment of this Court reported in 2000(1) PLJR 222 (Chandan Kumar V/s. State of Bihar & Anr).
5. It is next submitted that in any event the value of the dishonoured instrument being Rs. 15,000/- would have already been paid subsequently to the complainant. Learned Counsel submits that by virtue of Section 147 of the Amendment Act of Negotiable Instruments Amendment and Miscellaneous Provisions Act, 2002 the offence would now have been made compoundable. He lastly submits that in a prosecution initiated under Section 138 of the N.I.Act there would not be any essence of applicability of the provisions of Section 420 of the Penal Code. The complaint would not allege any dishonest intention to cheat at the inception when the cheque would have been served. It is submitted that in the facts and circumstances of the case, the petitioner would also in fact have tendered the entire value of the dishonoured instrument and hence there would be no applicability of Section 420 of the Penal Code. He placed reliance for the purpose upon a judgment of the Karnataka High Court reported in 2002 DCR (Dishonour of Cheque Reporter) 18(Nemichand Swarupchand Shaha V/s. M/s T.H. Raibhagi Firm).
6. Learned Counsel for the complainant while acknowledging receipt of the amount in question would submit by placing reliance on a judgment of the Supreme Court reported in (2001)1 SCC 631 (Rajneesh Aggarwal V/s. Amit J. Bhalla) that mere payment of the value of dishonoured instrument would not absolve the liability for prosecution and the payment may at best be a mit
