SUPREME COURT OF INDIA
K.S. RADHAKRISHNAN,A.K. SIKRI
KAMLESH KUMAR – Appellant
Versus
STATE OF BIHAR – Respondent
Crl.A. No.-002083-002083 / 2013
11-12-2013
AKHILESH KUMAR PANDEYSAMIR ALI KHAN
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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 30th
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