Advocates:
['HEMANT KR SHIKARWAR', '', 'PRIYANKA', 'SHALINI KUMARI', 'GOURI S PRASAD', '', 'VIJAY RANJAN SINHA']

1

IN THE HIGH COURT OF JHARKHAND, RANCHI

----

Cr.M.P. No. 4246 of 2018

----

Chandra Mohan Kumar Paswan, aged about 48 years, s/o Dipchand

Paswan, r/o Village-Banaso, PO-Banaso, PS-Bishnugarh, District Hazaribag

….. Petitioner

-- Versus --

1.The State of Jharkhand

2.Rakesh Kumar, s/o Sri Bajrangi Prasad, r/o Village-Ramuwa, PO and PS

Bishnugarh, District Hazaribag

…... Opposite Parties

----

CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

---

For the Petitioner :- Mr. H.K.Shikarwar, Advocate

For the State :- APP

For the O.P.No.2

:- Mr. Rajiv Kumar, Advocate

----

8/28.06.2022

This petition has been filed for quashing the entire criminal

proceeding arising out of complaint case no.1324/2018 including the

order taking cognizance dated 20.08.2018 passed by learned Judicial

Magistrate, 1^st Class, Hazaribagh, pending in that court.

Mr. Shikarwar, the learned counsel for the petitioner submits

that after lapse of six months the case has been filed and cognizance has

been taken by the learned court under section 138 of Negotiable

Instruments Act. He submits that the cheque was issued on 26.12.2017

and on the same date the cheque was presented which was not

encashed as the payment was stopped. He submits that legal notice was

issued on 16.01.2018 and returned on 18.01.2018, however, the case has

been filed in the court below on 11.07.2018. He submits that statutory

provision of filing the case under section 138 of N.I.Act read with section

142 has not been taken care of by the learned court. However,

cognizance has been taken.

Mr. Rajiv Kumar, the learned counsel appearing for the

O.P.No.2 submits that now there is provision of condoning the delay and

it appears that due to inadvertence any petition for condonation of delay

has not been filed. The Hon’ble Supreme Court has considered this

aspect of the matter in the case of “Yogendra Pratap Singh v. Savitri

Pandey and Another” reported in (2014) 10 SCC 713. Paragraph no.42 of

the said judgment is quoted hereinbelow:

“42. Section 142 of the NI Act prescribes the mode

and so also the time within which a complaint for an offence

under Section 138 of the NI Act can be filed. A complaint made

under Section 138 by the payee or the holder in due course of

the cheque has to be in writing and needs to be made within

2

one month from the date on which the cause of action has

arisen under clause (c) of the proviso to Section 138. The period

of one month under Section 142(b) begins from the date on

which the cause of action has arisen under clause (c) of the

proviso to Section 138. However, if the complainant satisfies the

Court that he had sufficient cause for not making a complaint

within the prescribed period of one month, a complaint may be

taken by the Court after the prescribed period. Now, since our

answer to question (i) is in the negative, we observe that the

payee or the holder in due course of the cheque may file a fresh

complaint within one month from the date of decision in the

criminal case and, in that event, delay in filing the complaint

will be treated as having been condoned under the proviso to

clause (b) of Section 142 of the NI Act. This direction shall be

deemed to be applicable to all such pending cases where the

complaint does not proceed further in view of our answer to

question (i). As we have already held that a complaint filed

before the expiry of 15 days from the date of receipt of notice

issued under clause (c) of the proviso to Section 138 is not

maintainable, the complainant cannot be permitted to present

the very same complaint at any later stage. His remedy is only

to file a fresh complaint; and if the same could not be filed

within the time prescribed under Section 142(b