Back
IN THE HIGH COURT OF JUDICATURE AT PATNA
ANJANA PRAKASH, J.
Dr. Rajuma Baudha S/o Late Ma Chainag Sen – Petitioner
Versus
The State of Bihar – Respondent
Criminal Miscellaneous No. 13116 of 2009
Decided On : 22-07-2011
Advocate Appeared:
For the Petitioners: M/s. Devendra Prasad Sinha, Rajesh Sinha.
For the Respondents: Mr. Bhanu Pratap Singh, Mr. Arun Kumar.
Statutory requirements under section 138 of the Negotiable Instrument Act must be strictly adhered to for the prosecution to be tenable.
Headnote:
Cheque Dishonour - Criminal Breach of Trust and Cheating - Indian Penal Code, Section 406 and 420; Negotiable Instrument Act, Section 138
Fact of the Case:
The petitioner, as the Chairman of an institute, appointed the complainant as a lecturer. The complainant alleged that the petitioner issued post-dated cheques which were dishonoured, leading to criminal breach of trust, cheating, and misappropriation.
Finding of the Court:
The court found that the complaint under section 138 of the Negotiable Instrument Act was not valid as the complaint was filed within nine days of sending the notice, violating the statutory requirement of fifteen days for payment after notice. Additionally, the court held that the allegations did not substantiate the offences under sections 406 and 420 of the Indian Penal Code.
Issues: Validity of the complaint under section 138 of the Negotiable Instrument Act, and the substantiation of offences under sections 406 and 420 of the Indian Penal Code.
Ratio Decidendi: The court emphasized the statutory requirements under section 138 of the Negotiable Instrument Act, and the need for cogent proof to establish offences under sections 406 and 420 of the Indian Penal Code.
Final Decision: The court allowed the application and set aside the order related to the petitioner in the complaint case.
ANJANA PRAKASH, J.
1. The petitioner has sought quashing of the order dated 12.05.2008 by which the Judicial Magistrate, 1st class, Danapur, Patna, has taken cognizance under section 406 and 420 Indian Penal Code and section 138 of the Negotiable Instrument Act in Complaint Case No. 133-C of 2008.
2. The case of the complainant is that accused persons visited the complainant at his house and requested him to join as Sr. Lecturer in Awadh Institute of Dental Sciences, Lucknow, giving him hopes of its bright future. On 01.02.2007 the complainant received appointment letter duly signed by the petitioner. Pursuant to which he joined the said institute and was promoted to the post of Reader. On 13.02.2007, the petitioner allegedly gave him twelve post dated cheques in his favour against salary account after TDS for the period February, 2007 to January, 2008. In due course of time, the complainant deposited eleven cheques out of which two cheques were credited in his account but rest nine cheques were dishonoured on account of ‘stop payment’ which was reported to him by the bank official of Canara Bank, Danapur Cantt Branch. It is alleged that the act of issuance of cheques by the petitioner without sufficient funds in his account was a criminal offence and amounts to criminal breach of trust, cheating and wrongful loss to the complainant. It is further alleged that amount of Rs. 1,33,749/- was misappropriated by the accused persons. The complainant has averred that he sent a legal notice on 07.02.2008 through one Anil Kumar Gupta, Advocate, but till the filing of the complaint the cheques were not honoured and, therefore, the complaint was filed on 19.02.2008.
3. Counsel for the petitioner submits that the petitioner indeed was the Chairman of Awadh Institute of Dental Sciences, Lucknow, and had appointed the complainant as Sr. Lecturer in the said institute but he absented himself from April, 2007, on account of which he sent a notice to him. He also wrote about the retention of the post dated cheques given to him at the time of appointment and that his pay would not be released. He produced an agreement between the Institute and the complainant, wherein, one of the clause was that as Sr. Lecturer the Complainant would not resign from the Institute till the end of three years and if he did so, he would have to give a notice of three months prior at hand or salary for three months would be forfeited. It is also specifically mentioned that salary was fixed for Rs. 16,000/- per month and, therefore, the amount being claimed by the complainant at this stage is completely absurd. Further submission is that under section 138 of the Negotiable Instrument Act cause of action arise only when the accused has not made payment within fifteen days of the receipt of notice. The complainant’s act of not waiting for the stipulated period and filing the complaint within twelve days of sending the notice to him, the complaint was bad so far as the offence punishable under section Negotiable Instrument Act is concerned.
4. On the other hand, counsel for the complainant submits that the petitioner is running a fake institution and has been hauled up by the police which some newspaper clipping demonstrate and, therefore, he should not be spared when he has cheated the complainant in the manner as he has done. Further submission is that in the facts of the case a clear case of cheating and misappropriation is made out. As for section 138 of the Negotiable Instrument Act, the counsel for the opposite party no. 2 contends that since the notices were sent to Lucknow which is at a short distance from Patna, it may be presumed that it was received in very next few days and, therefore, the complaint was not filed in a hurry. He also submits that one of the accused persons in Lucknow had replied to the notice on 12.02.2008 and, therefore, it may be presumed that the petitioner had also received the said notice. Further submission of the counsel for the
