Jharkhand High Court
Chandra Mohan Kumar Paswan vs The State Of Jharkhand on 28 June, 2022
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 4246 of 2018
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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
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. H.K.Shikarwar, Advocate
For the State :- APP
For the O.P.No.2 :- Mr. Rajiv Kumar, Advocate
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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, 1st 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
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."
It has been held that in such situation the remedy is to file
fresh case or to explain before the court, however, in the impugned order
this aspect has not been heard.
Accordingly, impugned order dated 20.08.2018 in
connection with complaint case no.1324/2018 passed by learned Judicial
Magistrate, 1st Class, Hazaribagh, pending in that court is set aside.
The matter is remitted back to the concerned court to pass
a fresh order.
The instant petition stands disposed of.
I.A., if any, accordingly stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/
