Jawed Alam vs The State Of Jharkhand
2022 Latest Caselaw 2201 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr.M.P. No. 4191 of 2018

Jawed Alam                                              ......     Petitioner
                            Versus

1.The State of Jharkhand
2.Radheshyam Sahu                                       ......     Opp. Parties
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CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------
For the Petitioner  : Ms. Sidhartha Roy, Advocate
For the State      : A.P.P.
For the O.P. No. 2 : Mr. Rajiv Ranjan, Advocate

06/Dated: 23/06/2022

Heard Mr. Sidhartha Roy, learned counsel for the petitioner, learned A.P.P

appearing for the State and Mr. Rajiv Ranjan, learned counsel for the O.P. No.2.

2. This petition has been filed for quashing of order taking cognizance

dated 11.10.2018 including entire criminal proceeding in connection with Complaint

Case No. 390/2018 pending in the Court of learned S.D.J.M., Lohardaga.

3. The complainant has filed complaint alleging therein that the O.P. No. 2

being a partner of a brick kiln namely Sagar Bricks was known to the petitioner from

before as the petitioner used to supply coal in the brick kiln to O.P. No. 2. It is alleged

that on 04.04.2016 the petitioner requested the O.P. No. 2 to manage a sum of Rs. 30

lakhs as he was in dire need of money and assured the O.P. No. 2 that the said

amount shall be returned by the month of June, 2016 else the amount would be

adjusted by supplying coal of the said amount in the brick kiln of the O.P. No. 2. It is

further alleged that the O.P. No. 2 in good faith gave friendly loan to O.P. No. 2

amounting to Rs. 30 lakhs against the said amount, the petitioner handed over two

post dated cheques worth Rs. 15 lakhs each to the O.P. No. 2. It is further alleged

that although the time frame for making the payment of the loan amount by the

petitioner ended yet he did not pay a single farthing to the O.P. No. 2 for which he

was constrained to present the cheque before his bank for clearance. After

presentation of the said cheques, both the cheques become dishonoured. Thereafter

the O.P. No. 2 sent a legal notice to the petitioner which returned unserved with

endorsement (refused to take). Thereafter a complaint petition being Complaint Case

No. 221/2016 has been filed under section 138 of N.I. Act in which the petitioner vide

judgment dated 02.06.2017 has been convicted and against the said conviction the

petitioner moved in appeal before the Sessions Judge, Lohardaga being Cr. Appeal No.

44/2017 and the said appeal was allowed and the judgement of conviction was set

aside and the petitioner was discharged from all criminal liabilities. Against the order

of acquittal the O.P. No. 2 again moved Criminal Revision which was dismissed as

withdrawn by the O.P. No. 2 and after withdrawal of the criminal revision, the present

Complaint Case No. 390/2018.

4. Mr. Sidhartha Roy, learned counsel for the petitioner submits that for

the same cheque in question O.P. No. 2 earlier has filed Complaint Case No.

221/2016 which was tried by the learned S.D.J.M., Lohardaga and the petitioner was

convicted by judgment dated 02.06.2017. He submits that the said judgment was

challenged before the learned Sessions Judge in Criminal Appeal No. 44 of 2017 and

the learned Sessions Judge relying on judgment of the Hon'ble Supreme Court in the

case of " Yogendra Pratap Singh V. Savitri Pandey" reported in (2014) 10

SCC 713 on the ground of pre-mature of filing the petition under section 138 N.I.

Act acquitted the petitioner and the petitioner was discharged. He further submits that

in the light of Yogendra Pratap Singh(supra) case after disposal of the said case

within one month fresh complaint was required to be filed by the complainant

however, the complainant filed Criminal Revision No. 1386 of 2017 before this Court

and subsequently the same was dismissed as withdrawn vide order dated 24.05.2018

with observation that withdrawal of the petition may not prejudice in taking legal

recourse by the petitioner and after withdrawal of the criminal revision, the

complainant has filed fresh complaint on 04.07.2018. He further submits that in

absence of any petition for condonation of delay, the learned court has taken

cognizance which is against the mandate of law as held by Hon'ble Supreme Court in

the case of Yogendra Pratap Singh(supra). He submits that on these grounds the

entire proceeding is fit to be quashed.

5. On the other hand, Mr. Rajiv Ranjan, learned counsel for the O.P. No. 2

submits that in the criminal revision taking legal recourse by the petitioner (O.P. No.

2) was kept open and the fresh complaint was filed on 04.07.2018 that is delay of

only nine days after withdrawal of criminal revision. He submits that earlier petition

was not adjudicated on merit that is why fresh complaint petition has been filed.

6. In view of the aforesaid facts and considering the submissions of the

learned counsel for the parties, it transpires that complainant-O.P. No. 2 after

acquittal of the petitioner in Criminal Appeal No. 44 of 2017 filed criminal revision

before this Court which was numbered as Criminal Revision No. 1386 of 2017 and

the said criminal revision was dismissed as withdrawn by order dated 24.05.2018 with

observation that withdrawal of the petition may not prejudice in taking legal recourse

by the petitioner. Thereafter the complainant filed fresh complaint on 04.07.2018. In

the case of Yogendra Pratap Singh(supra) the Hon'ble Supreme Court in para 42

has held as under:

"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 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), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly."

7. On perusal of law laid down by the Hon'ble Supreme Court in the case

of Yogendra Pratap Singh(supra) it is crystal clear that O.P. No. 2 was required to

be filed fresh complaint where case was filed from the date of decision of the criminal

case. In the case of Yogendra Pratap Singh(supra) it has been held that only

remedy is available to file fresh complaint and if the same could not be filed within

the time prescribed under section 142(b), his recourse is to seek the benefit of the

proviso, satisfying the Court of sufficient cause and admittedly cognizance order is

silent on the point of delay. Reference may be made to the case of "Pawan Kumar

Ralli V. Maninder Singh Narula" reported in (2014) 15 SCC 245 wherein para

22 and 23 the Hon'ble Supreme Court has held as under:-

"22. In view of the settled principles of law in Rakesh Kumar Jain, MSR Leathers and Subodh S. Salaskar and in the peculiar facts and circumstances of the case, we are of the considered opinion that the High Court was not right in quashing the complaint merely on the ground that complaint is barred by limitation, that too a plea which was taken for the first time before the High Court. On the other hand, the High Court ought to have remanded the matter to the trial court for deciding the issue of limitation. At the same time, we want to make it very clear that by this observation we are not laying down a legal proposition that without even filing an application seeking condonation of delay at an initial stage, the complainant can be given opportunity at any stage of the proceeding. As already discussed by us in the foregoing paragraphs, we have come to the irresistible conclusion, to afford an opportunity for the complainant to move an application seeking condonation of delay, under the peculiar facts and circumstances of the case.

23. For all the aforesaid reasons, in order to meet the ends of justice, we exercise our discretion under Article 142 of the Constitution and set aside the impugned judgment of the High Court quashing the criminal proceedings and restore the criminal proceedings before the trial court. The appellant is permitted to file an application for condonation of delay before the trial court and if such an application is filed, the trial court shall be at liberty to consider the same on its own merits, without being impressed upon by any of the observations by this Court, and pass appropriate orders.

8. In view of the said proviso atleast delay was required to be condoned

before the court. The O.P. No.2 has persuaded his case which has not been decided

on merit as opportunity was provided by the Hon'ble Supreme Court in the light of

Yogendra Pratap Singh(supra) to file fresh case. Accordingly, cognizance order

dated 11.10.2018 passed in connection with Complaint Case No. 390/2018 pending in

the Court of learned S.D.J.M., Lohardaga is hereby set aside.

9. The matter is remitted back to the court concerned to pass fresh order in

accordance with law.

10. This criminal miscellaneous petition is allowed and disposed of.

11. Interim order dated 16.05.2019 is vacated.

(Sanjay Kumar Dwivedi, J.)

Satyarthi/