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SANJAY KUMAR DWIVEDI
Mahesh Kumar Kejriwal – Appellant
Versus
State of Jharkhand – Respondent
Key Points: - The order taking cognizance under Section 138 NI Act must include essential details regarding the cheque return memo and the disputed amount. (!) (!) - The court held that the cognizance order dated 06.06.2012 lacked necessary details (date of return memo and amount) and set it aside, remitting the matter for a fresh order. (!) (!) - The case involves a dishonored cheque of Rs. 1,50,00,000/- and alleged non-refund totaling Rs. 3,77,75,000/-, with conflicting statements about whether the amount was returned. (!) - The matter is remitted back to the court to pass a fresh order in accordance with law. (!) - The proceedings pertain to CP Case No. 876 of 2012 in Dhanbad, with cognizance taken by the Judicial Magistrate, 1st Class. (!) - Notices and service issues are discussed, including multiple orders for service and subsequent steps like substituted service by publication. (!) - The petition seeks quashing of the entire criminal proceeding including the order taking cognizance due to disputed facts regarding payment. (!) (!) - Cross-examination testimony presents that the amount regarding the cheque has not been received, indicating disputed facts about payment. (!) - The petitioner argues that the amount was returned, which is claimed to be admitted in evidence, while the respondent contends the opposite. (!) (!)
JUDGMENT :
Sanjay Kumar Dwivedi, J.
1. By order dated 13.06.2017 notices were directed to be issued upon the O.P. No. 2. Fresh notice was issued on 13.05.2022. It has been referred in the order dated 03.07.2023 that notice on behalf of the O.P. No. 2 has been received by the staff and in view of that, on that day, fresh notices were directed to be issued upon the O.P. No. 2 and liberty was provided to the petitioner to serve personally and file supplementary affidavit. By order dated 16.08.2023 the O.P. No. 2 was directed to serve through learned lawyer who was appearing before the learned court on behalf of O.P. No. 2 and by order dated 12.09.2023 the petitioner was directed to take substituted steps of notice by way of paper publication and pursuant to that, the petitioner has filed the affidavit annexing the paper publication. In spite of that, the O.P. No. 2 has not appeared. In view of that, this matter is being heard in absence of the O.P. No. 2.
2. Heard Mr. Jitendra S.Singh, the learned counsel appearing on behalf of the petitioner and Mr. Abhay Kumar Tiwari, the learned counsel appearing on behalf of the respondent State.
3. This petition has been filed for quashing of the ent
The order taking cognizance under Section 138 of the Negotiable Instruments Act must include essential details regarding the cheque return memo and the disputed amount.
The power under section 482 Cr.P.C. for quashing criminal proceedings should not be exercised when there is a disputed question of fact to be decided by the trial court.
A valid demand notice under Section 138 of the Negotiable Instruments Act must specify the exact amount related to the dishonored cheque; failure to do so invalidates the cognizance.
The judgment emphasized the limitations on the power of the Magistrate to recall summons and the necessity of evidence for determining the service of notice.
The presumption of service of notice under Section 27 of the General Clauses Act applies when sent via registered post, affirming the lower court's cognizance in dishonoured cheque cases.
Absence due to illness justified, allowing restoration of complaint proceedings in cheque dishonour cases.
Failure to comply with court orders regarding cheque dishonour justifies proclamation proceedings and cancellation of bail.
Premature filing of a complaint under section 138 of the Negotiable Instruments Act renders the complaint not maintainable.
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