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2017 Supreme(Pat) 434
IN THE HIGH COURT OF PATNA
Ashwani Kumar Singh, J.
Vishwanath Chaudhary @ Vishwanath Prasad Chaudhary S/O Late Ram Swaroop Chaudhary and Ors. - Petitioners
Versus
The State of Bihar and Anr. - Opposite Parties
Criminal Miscellaneous No. 30357 of 2013
Decided On : 06-04-2017
For the Opposite Party :Mr. Umesh Lal Verma, APP., Mr. Viveka Nand Singh, Advocate
Headnote:
Negotiable Instruments Act, 1881 – Section 138 – Indian Penal Code, 1860 – Section 420 – Criminal Procedure Code, 1973 – Section 482 – Dishonour of cheque and cheating – Premature complaint – 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 – There is no allegation that petitioners ever intended to deceive complainant rather complainant has admitted in complaint itself that he was on friendly terms since long and had paid amount to petitioners for purchase of a vehicle on promise that he would return amount in due time – Complainant admits to have received back Rs. 1,30,000/- from accused persons in various instalments but remaining amount was not paid and cheque issued by one of accused got dishonoured due to insufficiency of fund – Such allegation made in complaint would not bring case within ambit and scope of Section 420 of IPC as it would be merely a case of breach of contract – Mere breach of contract cannot bring criminal cheating unless fraudulent or dishonest intention is shown right at beginning of transaction – It is intention which is gist of offence – 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 – Impugned order and criminal case quashed. (Paras 11, 15, 16 and 17)
Mr. Ashwani Kumar Singh, J.
1. 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 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 instalments 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 where after 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 fifteen days of the receipt of information by him from the ban
