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2019 Supreme(Gau) 1009
IN THE HIGH COURT OF GAUHATI
Ajit Borthakur, J.
Bipul Das - Appellant
Vs.
State Of Assam And Anr. - Respondent
Criminal Petition No. 602 of 2017
Decided On : 16-08-2019
N.C. Das, Adv.
Headnote:
Negotiable Instruments Act, 1881 – Section 118 138 139 – Indian Penal Code – Sections 380/420 – Code of Criminal Procedure – Section 482 – Dishonoring of Cheques – The petitioner prays for setting aside and quashing of the proceeding in C.R. Case under Section 138 of the NI Act, 1881 and the order, , passed by the Court of learned Munsiff No.4-cum-Judicial Magistrate, 1st Class – Counsel appearing for the petitioner, besides reiterating the grounds for the instant petition, submits that it is a settled law that under the provisions of Section 138 of the NI Act, the cause of action arises only after lapse of 15 days from the date of receipt of notice, but in the instant case, the respondent No.2/ complainant stated that the cause of action arose from 10.11.2016 and all other subsequent dates – According to Counsel, the legal notice was dispatched on 17.02.2017, which was received by the petitioner on 20.02.2017 and in the complaint, the respondent No.2 stated that the cause of action arose on 10.01.2016, that is, on a date prior to issue of the legal notice on 17.02.2017 – Therefore, vehemently submits to set aside and quash the entire proceeding including the impugned order – Held, The learned Magistrate recorded the prima facie view that the petitioner/ accused issued the cheques in question, which were, on presentation to the bank, dishonoured for insufficiency of funds – On perusal of the FIR, under Section 380/420 of the IPC, reveals that he(petitioner) has not denied issue of the cheques and dishonour of the said cheques by the bank for insufficient fund – But contended that those cheques were issued in favour of Mahindra and Mahindra Finance Services by him for security purpose against the car loans – In the instant petition too he has pleaded the same ground, adding, of course, further that those cheques were blank account payee and he suspected that the said cheques might be written by the respondent No.2/ complainant in his own handwriting and the same will be proved after forensic examination – The petitioner pleaded that there is no legally enforceable debt raising a criminal liability of him. The respondent No.2/ complainant asserted that the petitioner issued the cheques in question as he failed to hand over the vehicles in terms of their agreement of sale to him – Therefore, in the backdrop of such disputed facts, it is not ascertainable as to which of the said two sets of facts to be apparently relied on their face value – Hence, keeping in view the ratio of the judgment rendered in Rajiv Thapar (supra), this Court is of the view that the entire proceedings in CR Case and the order, are not liable to be set aside and quashed as prayed – The issue of maintainability of the complaint referred in paragraph 6 above to be looked into by the learned Court below – Accordingly, the petition stands dismissed – Petition Dismissed
JUDGMENT :
Ajit Borthakur, J.
Heard Mr. TJ Mahanta, learned counsel for the accused petitioner and Mr. KN Choudhury, learned Senior Counsel for the respondent No. 2. Also heard Mr. BJ Dutta, learned Additional Public Prosecutor, Assam appearing for the State/ respondent No.1.
2. By this petition under Section 482 Cr.P.C., the petitioner prays for setting aside and quashing of the proceeding in C.R. Case No. 1509C of 2017 under Section 138 of the NI Act, 1881 and the order, dated 31.05.2017, passed by the Court of learned Munsiff No.4-cum-Judicial Magistrate, 1st Class, Kamrup (M) at Guwahati.
3. The petitioner is a businessman by profession and registered owner of vehicles, who let on hire vehicles to the respondent No.2, who is the owner and one of the partners of 'Pristine cabs,' which is a registered partnership firm. The petitioner executed 3(three) agreements for hire of vehicles bearing registration Nos. AS 01FC 8205, AS 01FC 8430 and AS01 FC 8206 with the firm of the respondent No.2 and another, on 01.11.2014. As per the terms and conditions of the said agreements, all vehicles will run on road for a period of 3(three) years under the said firm namely, Pristine Cabs and Rs.22,000/- (Twenty Two Thousand) only, per car, shall be paid, per month, to the petitioner. But in breach of the aforementioned terms and conditions incorporated in Clause 3 of the agreements, the respondent No.2/ firm paid Rs.15,100/- in respect of vehicle Nos. AS 01FC 8205 and AS 01 FC 8206 and Rs.15,000/- in respect of vehicle No.AS01 FC 8430, per month, to the petitioner with promise to pay the balance amounts by way of adjustments. In this regard, 3(three) new agreements were executed on 19.02.2016 for vehicle Nos. AS01FC 8205 and AS01 FC 8206 as well as on 05.03.2016 for vehicle No. AS 01FC 8430. The petitioner signed in all necessary documents for transferring the said vehicles to the firm/ respondent No.2. However, the respondent No.2 failed to pay the monthly instalments, as per terms and conditions of the said agreements, to the respective banks for the petitioner's vehicles. Therefore, the petitioner by a legal notice, dated 18.08.2016, demanded clearance of all the EMI dues to the bank and conveyed his decision not to continue with the aforesaid agreements and accordingly to return the vehicles along with the signed documents relating to transfer of the vehicles, after making necessary adjustments of the outstanding amounts. But on 19.01.2017 at around 5 am, he received 3(three) messages in his mobile number relating to dishonour of 3(three) cheques bearing Nos.210891 for Rs.5,00,000; 208892 for Rs.5,00,000 and 20893 for Rs.3,90,000 only, purportedly issued by him. On the following day, that is, on 20.01.2017, the petitioner filed an FIR, which was registered as Chandmari PS Case No. 12 of 2017 under Sections 380/420 of the IPC and thereafter, it was referred to Dispur PS for further investigation, where it was registered as Dispur PS Case No. 357 of 2017 under Section 380/420 of the IPC. The said dishonoured cheques were deposited by the respondent No.2 in his A/C No.245601500564 of ICCI Bank, Down Town Branch on 18.01.2017, which were issued allegedly towards sale price of the said 3(three) vehicles by the petitioner as he came to know when he received a notice, dated 17.02.2017 under Section 138 of NI Act from the respondent No.2. According to the petitioner, he issued 8 (eight) cheques bearing Nos. 201891, 201892, 201893, 201894, 201895, 201896, 201897 and 201898 in favour of Mahindra and Mahindra Finance Service Ltd. for security purpose towards car loans in the month of November, 2014, but instead of handing over all those cheques to the said company, the respondent No.2 handed over only 5(five) cheques bearing Nos. 201894 to 201898 and the balance 3(three) cheques were retained without the knowledge of the petitioner, which were subsequently filled up with false amounts and presented for payment in the petitioner's bank. It is further co
