JUDGMENT :

S. K. SAHOO, J.

1. This is an application under section 482 of Cr.P.C. filed by the petitioner Ashok Kumar Das with a prayer to hold the impugned order dated 24.06.2005 passed by the learned S.D.J.M., Nayagarh in I.C.C. Case No. 80 of 2005 in taking cognizance of offence under section 138 of the Negotiable Instruments Act, 1881 (hereafter ‘N.I. Act’) as bad and illegal and to quash the complaint case proceeding.

2. It appears that after the complaint petition was filed, learned Magistrate recorded the initial statement of the complainant on 18.06.2005 and on 24.06.2005 after perusing the statement of the complainant and the documents, took cognizance of the offence under section 138 of the Negotiable Instrument Act and issued process against the petitioner.

3. The complaint petition reveals that the complainant was a wholesale dealer of consumer durable items having a showroom at Kacheri Bazar, Main Road, Nayagarh and the petitioner was a retailer of such items and there was business transaction between the parties since 1996 till 2002 and the petitioner was taking consumer durable items and paying at the prescribed rates in cash and credit bills in dealer price. It is stated that during such business transaction, there was outstanding dues against the petitioner for an amount of Rs. 3,55,536/- (rupees three lakhs fifty five thousand fine hundred thirty six) as per the Credit Bill Memo No.3548 dated 11.01.2002 and Rs. 2,77,050.00/- lakhs ( rupees two lakhs seventy seven thousand fifty) as per the Credit Bill Memo No. 3553 dated 27.01.2002.

4. It is the further case of the complainant that despite several approach, the petitioner did not clear up the arrear dues and he took several adjournments to clear up the arrear dues of the consumer items but neglected to clear up the same. The opp. party-complainant issued a pleader’s notice to the petitioner on 11.04.2005 by registered post which was acknowledged by the petitioner on 13.04.2005 and then on 23.04.2005 the petitioner through his advocate sent reply to the pleader’s notice of the complainant wherein though it was admitted that there was business transaction between the parties since 1996 till 2002 but the petitioner disputed regarding the outstanding dues to the tune of Rs. 6,32,586/- (rupees six lakhs thirty two thousand five hundred eighty six) of the complainant against him. It is the further case of the complainant that the petitioner came to his show room at Nayagarh and requested him not to take any legal action and asked him to give one week time to clear up the arrear outstanding dues and ultimately the petitioner handed over a post dated cheque dated 28.04.2005 bearing No. 360177 for an amount of Rs. 6,00,000/- (rupees six lakhs) of State Bank of India, Manjhiakhanda Branch of District Nayagarh for discharge of his liability. The cheque was presented by the complainant in his account at UCO Bank, Nayagarh on 29.04.2005 for encashment but intimation was received from the bank that the account of the petitioner was closed. After receipt of the intimation on 18.05.2005 from UCO Bank, Nayagarh, the complainant sent a pleader’s notice in writing on 25.05.2005 making a demand of Rs.6,00,000/- (rupees six lakhs) to be paid within fifteen days of the receipt of the notice. The said notice which was sent by the registered post was acknowledged by the petitioner on 26.05.2005. Since the petitioner didn’t pay the amount within the stipulated period of 15 days, the complaint petition was filed.

5. The sole ground taken by the learned counsel for the petitioner while challenging the complaint case proceeding is that since there was no business transaction between the parties since 2002 and the alleged debt was barred by limitation at the time of issuance of cheque, therefore, there was no legally enforceable debt or other liability against the petitioner under the explanation to section 138 of the N.I. Act and as such the complaint petition was not maintainable.

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