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N. UNNI KRISHNAN NAIR
M. Srinivasa Kumar, S/o. Late M. V Krishna Rao – Appellant
Versus
Mibom Pertin, S/o. Late Gora Pertin – Respondent
JUDGMENT :
(N. Unni Krishnan Nair, J.)
Heard Mr. S. Bhattacharjee, learned counsel, appearing on behalf of the petitioner. Also heard Mr. Tony Pertin, learned counsel, appearing on behalf of the sole respondent.
2. The petitioner, herein, by way of instituting the present criminal petition, has presented a challenge to an order, dated 01.05.2019, passed by the Court of learned Chief Judicial Magistrate, Lower Dibang Valley District, Roing, taking cognizance in C.R. Case No. 02/2019, against the petitioner, herein.
3. The petitioner and the sole respondent, herein, had executed a memorandum of understanding on 29.09.2018, towards supply of HSD/Diesel in connection with the works involved for the formation cutting work for the execution of two laning of existing Hunli-Anini road as well as to take-over the machineries involved as mentioned in the said memorandum of understanding and accordingly, 5(five) post-dated cheques for payment of the dues, came to be issued by the petitioner, herein.
4. It is submitted that the sole respondent, herein, had taken away the machineries but did not return the cheques so involved. The cheques so involved were for varying amounts and were drawn on Vija
The trial Court erred in taking cognizance of the complaint under Section 138 of the Negotiable Instruments Act without examining the complainant and in violation of statutory time limits.
Issuance of summons without conducting inquiry under Section 202 of the Cr.P.C. is impermissible, making the cognizance under Section 138 of the N.I. Act unsustainable.
The cause of action for filing a complaint under Section 138 of the Negotiable Instruments Act cannot arise before expiry of 15 days from the date of service of notice upon the accused.
Point of Law : Inherent jurisdiction under Section 482 Cr.P.C. though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specificall....
The determination of the date of receipt of notice and the commencement of the statutory period for filing a complaint under Section 138 of the NI Act.
The dishonour of cheques and the existence of a legally enforceable debt must be proved, and the presumption under section 139 of the NI Act can only be rebutted with strong evidence.
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