The main legal point established in the judgment is that the offence punishable under Section 138 of the Negotiable Instruments Act is a non-cognizable offence, and the Act is a self-contained code for dealing with the prosecution of the offence punishable under Section 138, and the procedures for dealing with non-cognizable offences provided for in Section 155 Code of Criminal Procedure cannot be held applicable.

T. Vaiphei, J.

1. This criminal petition is filed by two Petitioners under Section 482 of the Code of Criminal Procedure, 1973 for quashing the FIR lodged against them, which is registered as Sadar P.S. Case No. 329 (12)/07 under Sections 420/ 34 I.P.C. Though the facts pleaded are many, the can be decided on a narrow compass. The nature of the controversy involved in this case can best be understood by reproducing, at the very outset, the contents of the FIR in extenso, which are as under:

I have the honour to hereby inform your goodself that the Cheque No. 049747 dated 14.08.2007, for an amount of Rs. 4,00,000/- (Rupees four lakhs) only, of the UCO Bank, Shillong, issued by the Company named "S.M. Apartments Pvt. Ltd.", of GS. Road (Opposite IDBI Building), Guwahati-781005, under the signature and seal of its Managing Director, Shri Kamakhya Mahanta and its Director, Shri Sagar Saikia, in my favour, was presented by me for encashment through my bank i.e. the Syndicate Bank, Shillong, to the drawee bank whereupon the cheque was returned along with the Memo dated 03.10.2007 under the signature of the Assistant Manager of the drawee bank, namely, UCO Bank, Shillong Branch, giving the reason that the cheque could not be encashed as the amount of Rs. 4,00,000/- "exceeds arrangement", Copies of the said cheque dated 14.08.2007 and the said Memo dated 03.10.2007 are enclosed herewith.

Subsequently I have given Notices Under Section 138 of the Negotiable Instruments Act, 1881, to the said Shri Kamakhya Mahanta and Sliri Sagar Saikia on 09.10.2007, demanding of them to pay the said amount of Rs. 4,00,000/- within 15 days of the receipt of the Notices. The Notices dated 09.10,2007 were sent by Registered Post with A/D and the A/D Cards returned showing that the addressees had received the Notices on 22.10.2007. Now more than 15 days have-lapsed since the receipt of the said Notices on 22.10.2007 by the said persons.

Hence I have no option but to file this instant ejahar and to request you to initiate necessary action as per law at your earliest convenience.

I shall remain ever grateful for your act of kindness.

Thanking you.

Yours faithfully,

Sd/- K.D. Nongrum

Mega Towers, Lummawrie,

Laitumkhrah, Shillong-3.

2. From the first information report lodged by the complainant/Respondent, it can hardly be disputed, nor does Mr. S. Chakraborty, the learned Counsel for the Respondent, dispute it in the course of hearing, that the Respondent himself is quite aware of the fact that the complaint lodged by him is in respect of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short) and not under Sections 420 I.P.C. This is evident from the fact that notices were also issued by him to the Petitioners under Section 138 of the Act. Therefore, the allegations made by him in the aforesaid FIR, even if they are taken at their face value and accepted in their entirety, can at the most be a case of dishonouring the cheque dated 14.8.2007 amounting to Rs. 4,00,000/- issued by the Petitioners due to insufficiency of fund in their account, which may constitute an offence punishable under Section 138 of the Act, and not under Section 420 I.P.C. However, instead of filing a complaint case under the Act just after the expiry of the notice issued by him under proviso (b) to Section 138 of the Act, the Respondent, for reasons best known to him, opted to lodge the FIR before the Officer-in-Charge of Sadar. Police Station. The Sadar Police Station also willingly obliged the Respondent and proceeded to arrest the Petitioner No. 2, though he was subsequently released on bail. The Petitioner No. 1 managed to obtain anticipatory bail from this Court, and was accordingly let off the hook.

3. The question which falls for consideration is whether the police can register the FIR lodged by the Respondent and take up investigation of the case without the order of a Magistrate when the offence complained of is admittedly one punis