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[REPORTABLE]

IN THE SUPREME COURT O F INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2083/2013

(arising out of SLP(Criminal) No. 10056 of 2012)

Kamlesh Kumar

…..Appellant

Vs.

State of Bihar & Anr.

….Respondents

J U D G M E N T

A.K.SIKRI,J.

1.

Leave granted.

2.

The appellant herein is facing trial in the complaint filed by

respondent No.2 under Section 138 of the Negotiable Instruments

Act (N.I. Act for short). According to the appellant, criminal

complaint is not maintainable and no such proceedings could be

launched against him. He, therefore, approached the High Court

of Judicature at Patna in the form of a petition under Section 482

of the Cr.P.C. for quashing of the order dated 28.10.2009 whereby

the Court of Magistrate had taken cognizance of the complaint

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filed by the respondent No.2 issued summons to the appellant.

This petition, however, has been dismissed by the High Court vide

impugned judgment dated 1.11.2012. The solitary reason given

by the High Court while dismissing the petition is that trial has

already commenced and two witnesses have already been

examined and discharged. Hence, at this stage it would not be

proper to interfere with the trial. Various contentions which were

raised by the appellant questioning the very maintainability of the

complaint under Section 138 of the N.I. Act are not gone into by

the High Court with the observations that those contentions would

be available to the appellant before the trial court, subject to the

rebuttal of respondent No.2.

3.

Mr. Mishra, learned senior counsel appearing for the

appellant submitted that even on admitted facts the complaint

was untenable as it was clearly time barred and not filed within

the stipulated period prescribed in law and therefore the High

Court could not have scuttled the issue raised by the appellant by

merely relegating the appellant to the trial court when the issue

could be decided on the admitted facts on records. He, further,

submitted that the appellant had approached the High Court

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without loss of any time and if during the pendency of the petition

filed by the appellant under Section 482, Cr.P.C., two witnesses

had been examined in the meantime, that factor could not have

weighed against the appellant.

4.

In order to understand the controversy, we may give basic

facts which are undisputed.

5.

The complaint under Section 138 of the N.I. Act is filed by

respondent No.2 on the basis of cheque bearing No.003285 drawn

on Bank of India, Mahua Branch where the appellant holds Bank

Account bearing No.23371. This cheque was for a sum of

Rs.3,45,000/-. The complainant had presented this cheque on

25.10.2008 which was returned dishonoured by the Bank. The

defence on merits set up by the appellant is that he is a doctor by

profession who is having his private practice. He found that

certain cheques, some signed and some unsigned, were missing

from his clinic in December 2006 in respect to which he had even

given information to the Sub-Divisional Officer, Mahua, on 30^th

December 2006. Cheque No. 003285 was also one of those stolen

cheques. We have stated this defence of the appellant just for

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record and are not going into this explanation of the appellant or

influenced by it. We only tend to examine as to whether on

admitted events, complaint is not maintainable.

6.

The cheque in question was presented on 25.10.2008. After

it was dishonoured, complainant issued notice dated 27.10.2008

to the appellant. The appellant did not accede to the demand

contained in the said notice. Even the complainant chose not to

file any complaint under Section 138 of the N. I. Act at that time.

Instead, he presented same very cheque again for encashment

through his banker on 10.11.2008. It bounced this time as w