Jharkhand High Court

Sumati Kachhap vs The State Of Jharkhand on 10 October, 2022

                                                    1                   Cr.M.P. No. 2189 of 2020


                     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               Cr.M.P. No. 2189 of 2020
                  Sumati Kachhap, aged about 37 years, wife of Sukhlal Kachhap @
                  Sukhlal Lohra, resident of Raghu Toli, P.O. Harmu, P.S. & District-
                  Lohardaga, Jharkhand                         ... Petitioner
                                          -Versus-
             1.   The State of Jharkhand
             2.   Smt. Shila Minz, W/o Amar Bakhala, Resident of Jharkhand Dipa,
                  Gumla, P.O., P.S. & District- Gumla           ... Opposite Parties
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             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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             For the Petitioner             : Mr. Sanjeev Thakur, Advocate

For the Opposite Party-State : Mr. P.C. Sinha, A.C. to G.A.-III For Opposite Party No.2 : Mr. Sunil Kumar, Advocate

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14/10.10.2022. Heard Mr. Sanjeev Thakur, learned counsel for the petitioner, Mr. P.C.

Sinha, learned counsel for the State and Mr. Sunil Kumar, learned counsel

for opposite party no.2.

2. This petition has been filed for quashing of entire criminal proceeding

including the order dated 10.01.2013 passed by the learned Chief Judicial

Magistrate, Gumla in connection with Complaint Case No.210 of 2010,

pending in the court of the learned Chief Judicial Magistrate, Gumla.

3. The complaint case has been filed by opposite party no.2 alleging

therein that the complainant and petitioner has known to each other in the

year 2004 for establishing a School and the petitioner had promised to help

the complainant in establishing the School if the complainant will arrange

Rs.25,00,000/-. It has been further alleged that somehow she arranged the

money and gave to the petitioner by cash and demand draft, in the year

2006 again the petitioner promised to help the complainant for establishing

the School. It has been also alleged that on different date money has been

given by different modes and in return some cheques were issued by the

petitioner in favour of the complainant. On deposit of the same cheque, in

her account the complainant found that all cheques were dishonoured,

when she approached the petitioner again she promised that the

complainant will get the money, but till today money has not been returned

to the complainant and as such the complaint case has been filed against

the petitioner.

4. Mr. Sanjeev Thakur, learned counsel for the petitioner submits that

the cheque in question was issued in the year 2008 and the complaint case

has been filed in the year 2010 and without explanation of delay, the

learned court has taken cognizance against the petitioner vide order dated

10.01.2013. He further submits that moreover the case is arising out under

the Negotiable Instrument Act and no ingredient of Sections 406, 420 and

506 of the Indian Penal Code is attracted and therefore the learned court

has wrongly taken cognizance against the petitioner under Sections 406,

420 and 506 of the Indian Penal Code.

5. On the other hand, Mr. Sunil Kumar, learned counsel for opposite

party no.2 took the Court to the complaint petition and submits that there

are allegations of issuing cheque which was dishounured and intention was

there from very beginning that the cheque will bounce and that is why there

is no illegality in the order taking cognizance.

6. Mr. P.C. Sinha, learned counsel for the State submits that the learned

court has rightly taken the cognizance against the petitioner.

7. In view of the above submissions of the learned counsel for the

parties, the Court has gone through the materials on the record and finds

that admittedly for dishonouring of the cheque, the complaint case has

been filed. It is an admitted fact that the cheque in question was issued in

the year 2008 and the complaint case has been filed in the year 2010. The

learned court while taking the cognizance has not considered this aspect of

the matter although as per new amendment there is proviso which speaks

that condoning the delay on proper petition is necessary, which has not

been done in the case in hand. The case is arising under the Negotiable

Instrument Act and the ingredient of Sections 406, 420 and 506 of the

Indian Penal Code is not attracted.

8. In view of the above facts and considering that without condoning the

delay the learned court has taken cognizance against the petitioner under

the Negotiable Instrument Act, which is not permissible. It is well settled

that the court is required to pass order in terms of the statute, which is

lacking in the case in hand. In this case, Section 138 of the Negotiable

Instrument Act is attracted and the ingredient of Sections 406, 420 and 506

of the Indian Penal Code is not attracted.

9. In view of the above facts, reasons and analysis, the order dated

10.01.2013 passed by the learned Chief Judicial Magistrate, Gumla in

connection with Complaint Case No.210 of 2010, pending in the court of the

learned Chief Judicial Magistrate, Gumla is, hereby, quashed.

10. Admittedly the amount has been taken by the petitioner and in view

of that, the opposite party no.2 cannot be allowed to be remediless and the

answer to this has already been answered by the Hon'ble Supreme Court in

Yogendra Singh v. Savitry Pandey; [(2014) 10 SCC 713] . Paragraph

no.41 of the said judgment reads as under:

"41. 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."

11. In light of the direction issued by the Hon'ble Supreme Court in

paragraph no.41 of the said judgment, it is open to the opposite party no.2

to file a fresh complaint case before the learned court within one month

from today and she may take recourse available under the Negotiable

Instrument Act, which will be examined afresh by the learned court in

accordance with law, if such complaint is filed.