The necessity of condoning the delay in filing a complaint under the Negotiable Instrument Act and the specific provisions of Section 138 were central to the judgment.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Sanjeev Thakur, learned counsel for the petitioner, Mr. P.C. Sinha, learned counsel for the State and Mr. Sunil Kumar, learned counsel for opposite party no. 2.

2. This petition has been filed for quashing of entire criminal proceeding including the order dated 10.01.2013 passed by the learned Chief Judicial Magistrate, Gumla in connection with Complaint Case No. 210 of 2010, pending in the court of the learned Chief Judicial Magistrate, Gumla.

3. The complaint case has been filed by opposite party no. 2 alleging therein that the complainant and petitioner has known to each other in the year 2004 for establishing a School and the petitioner had promised to help the complainant in establishing the School if the complainant will arrange Rs. 25,00,000/-. It has been further alleged that somehow she arranged the money and gave to the petitioner by cash and demand draft, in the year 2006 again the petitioner promised to help the complainant for establishing the School. It has been also alleged that on different date money has been given by different modes and in return some cheques were issued by the petitioner in favour of the complainant. On deposit of the same cheque, in her account the complainant found that all cheques were dishonoured, when she approached the petitioner again she promised that the complainant will get the money, but till today money has not been returned to the complainant and as such the complaint case has been filed against the petitioner.

4. Mr. Sanjeev Thakur, learned counsel for the petitioner submits that the cheque in question was issued in the year 2008 and the complaint case has been filed in the year 2010 and without explanation of delay, the learned court has taken cognizance against the petitioner vide order dated 10.01.2013. He further submits that moreover the case is arising out under the Negotiable Instrument Act and no ingredient of Sections 406, 420 and 506 of the Indian Penal Code is attracted and therefore the learned court has wrongly taken cognizance against the petitioner under Sections 406, 420 and 506 of the Indian Penal Code.

5. On the other hand, Mr. Sunil Kumar, learned counsel for opposite party no. 2 took the Court to the complaint petition and submits that there are allegations of issuing cheque which was dishounured and intention was there from very beginning that the cheque will bounce and that is why there is no illegality in the order taking cognizance.

6. Mr. P.C. Sinha, learned counsel for the State submits that the learned court has rightly taken the cognizance against the petitioner.

7. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record and finds that admittedly for dishonouring of the cheque, the complaint case has been filed. It is an admitted fact that the cheque in question was issued in the year 2008 and the complaint case has been filed in the year 2010. The learned court while taking the cognizance has not considered this aspect of the matter although as per new amendment there is proviso which speaks that condoning the delay on proper petition is necessary, which has not been done in the case in hand. The case is arising under the Negotiable Instrument Act and the ingredient of Sections 406, 420 and 506 of the Indian Penal Code is not attracted.

8. In view of the above facts and considering that without condoning the delay the learned court has taken cognizance against the petitioner under the Negotiable Instrument Act, which is not permissible. It is well settled that the court is required to pass order in terms of the statute, which is lacking in the case in hand. In this case, Section 138 of the Negotiable Instrument Act is attracted and the ingredient of Sections 406, 420 and 506 of the Indian Penal Code is not attracted.

9. In view of the above facts, reasons and analysis, the order dated 10.01.2013 passed by the learned Chief Judicial Magistra