Jharkhand High Court
Ramakant Singh vs The State Of Jharkhand on 17 October, 2022
1 Cr.M.P. No. 164 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 164 of 2022
Ramakant Singh, aged about 43 years, son of Dinanath Singh, resident
of village Indra Nagar, Itki Road, Opposite ITI Bus Stand, P.O. & P.S.
Sukhdeonagar, District- Ranchi ... Petitioner
-Versus-
1. The State of Jharkhand
2. Sripal Chand Jain, aged about 67 years, son of Late Suparash Mal
Jain, resident of village Dak Bangala Road, P.O. & P.S. Khunti, District-
Khunti ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Nilesh Kumar, Advocate
For the Opposite Party-State : Mrs. Vandana Bharti, A.P.P.
For Opposite Party No.2 : Mr. R.S. Mazumdar, Sr. Advocate
Mr. Gaurva, Advocate
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03/17.10.2022. Heard Mr. Nilesh Kumar, learned counsel for the petitioner,
Mrs. Vandana Bharti, learned counsel for the State and Mr. R.S. Mazumdar,
learned senior counsel for opposite party no.2.
2. I.A. No.8428 of 2022 has been filed for amendment in prayer portion
in the petition.
3. Mr. Nilesh Kumar, learned counsel for the petitioner submits that
during the pendency of this petition, the learned court has taken cognizance
vide order dated 13.05.2022 and that is why it was necessitated to file
this I.A.
4. Mr. R.S. Mazumdar, learned senior counsel appearing for opposite
party no.2 submits that there is no illegality in the cognizance order. He
further submits that he has got no serious objection if the I.A. is allowed.
5. In view of the above facts and considering that during the pendency
of this petition, cognizance has been taken and to avoid multiplicity of
litigation, the prayer made in the said I.A. is allowed.
6. Accordingly, I.A. No.8428 of 2022 stands disposed of.
7. Let this I.A. be treated as part of this petition.
8. This petition has been filed for quashing the entire criminal
proceeding including the cognizance order dated 13.05.2022 in connection
with Khunti P.S. Case No.111/2021, corresponding to G.R. No.299/2022,
pending in the court of the learned Chief Judicial Magistrate, Khunti.
9. Opposite party no.2 has lodged the FIR alleging therein that he had
supplied stone chips/stone materials to the petitioner i.e. from January,
2018 to September, 2019 i.e. of worth Rs.1,55,60,912/-, but he received
payment of only worth Rs.92,15,000/- and the rest amount was due,
however on 27.02.2021 a cheque of Rs.10 Lakh was given, the same was
deposited in the bank but the same has been returned from the bank as
payment was stopped by drawer i.e. on 18.03.2021, however again the
same was deposited before the bank on 13.05.2021, but the same was
dishonoured on 14.05.2021, notice was issued but no payment was made.
It has been further alleged that in the construction site of the petitioner on
the assurance of the petitioner article worth Rs.1,55,60,912/- was supplied
but the entire payment has not been paid, accordingly, the present FIR has
been lodged.
10. Mr. Nilesh Kumar, learned counsel for the petitioner submits that the
case is arising out of Section 138 of the N.I. Act and Section 406, 420 of the
I.P.C. He submits that entire allegation is with regard to bounce of cheque
and for that only complaint petition is maintainable in light of Section 142 of
the N.I. Act. He further submits that Section 406, 420 of the I.P.C. is not
attracted.
11. Mr. R.S. Mazumdar, learned senior counsel appearing for opposite
party no.2 submits that the amount in question has not been paid and
therefore FIR has been lodged. He further submits that the learned court
has rightly taken cognizance against the petitioner and there is no illegality
in the cognizance order and, therefore, at this stage this Court may not
entertain this petition.
12. In view of the above submissions of the learned counsel appearing for
the parties, it transpires that Section of the I.P.C. is not attracted in a case
where subject matter of the case is arising out of N.I. Act. and this aspect
of the matter is being considered by the larger Bench of the Hon'ble
Supreme Court as to whether in a case which is arising under Section 138
of the N.I. Act, Section 406, 420 of the I.P.C. is attracted or not. Moreover,
the case is arising under Section 138 of the N.I. Act and for that only
complaint case can be entertained, which is lacking in the case in hand.
13. Accordingly, the entire criminal proceeding including the cognizance
order dated 13.05.2022 in connection with Khunti P.S. Case No.111/2021,
corresponding to G.R. No.299/2022, pending in the court of the learned
Chief Judicial Magistrate, Khunti is, hereby, quashed.
14. It is admitted fact that the matter is of Section 138 of the N.I. Act and
opposite party no.2 cannot be allowed to be remediless and the answer to
this has already been given by the Hon'ble Supreme Court in Yogendra
Singh v. Savitry Pandey; [(2014) 10 SCC 713] . Paragraph 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."
15. In light of the above direction issued by the Hon'ble Supreme Court in
paragraph no.41 of the said judgment, it is open to opposite party no.2 to
file a fresh complaint case before the learned court as has been held in
paragraph no.41 of the said judgment and if the same could not be filed
within the time prescribed under section 142(b) of the said Act, opposite
party no.2 can seek the benefit under the aforesaid proviso.
16. With the above observation and direction, this petition stands allowed
and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
