Jharkhand High Court
Dilip Kumar Pandey vs The State Of Jharkhand on 28 November, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1308 of 2015
Dilip Kumar Pandey ..... ... Petitioner
Versus
1. The State of Jharkhand.
2. Rakesh Kumar Pandey ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. A.K. Kashyap, Sr. Advocate.
For the State : Mrs. Priya Shrestha, Spl.P.P.
For the O.P. No. 2 : Mr. Ashish Kumar, Advocate.
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05/ 28.11.2023 Heard Mr. A.K. Kashyap, learned senior counsel appearing
for the petitioner, Mrs. Priya Shrestha, learned Spl.P.P. for the State and
Mr. Ashish Kumar, learned counsel appearing for the O.P. No. 2.
2. This petition has been filed for quashing of the order dated
09.06.2015, passed by the learned Principal Sessions Judge, Sahibganj,
in Cr. Rev. No. 102 of 2014, whereby the cognizance taken under
Section 138 of the NI Act by the learned court against the O.P. No. 2
has been set aside and the revision petition was allowed, in connection
with P.C.R. Case No. 421 of 2014 (T.R. No. 694 of 2014).
3. Learned senior counsel appearing for the petitioner submits
that the learned court has taken the cognizance under Section 138 of the
NI Act and the same was reversed by the learned revisional court on the
ground that notice was received on 26.06.2014 and the case was filed
on 11.07.2014, the month of June, being of 30 days and the case was
filed on 15th day of issuance of legal notice to the drawer. He submits
that on that very ground the learned revisional court has set aside the
cognizance order. He submits that the case of the petitioner is fully
covered in the light of the judgment of Hon'ble Supreme Court in the
case of Narsingh Das Tapadia Versus Goverdhan Das Tartani & Anr.
reported in (2000) 7 SCC 183, where in paras-6 and 8, the Hon'ble
Supreme Court has held as follows:-
"6. Clause (c) of proviso to Section 138 which
makes the dishonour of a cheque an offence
provides that nothing contained in the section
shall apply unless:
"(c) the drawer of such cheque fails to make
the payment of the said amount of money to the
payee or as the case may be, to the holder in
due course of the cheque within fifteen days of
the receipt of the said notice.
Explanation.--For the purposes of this
section, 'debt or other liability' means a legally
enforceable debt or other liability."
8. "Taking cognizance of an offence" by the
court has to be distinguished from the filing of
the complaint by the complainant. Taking
cognizance would mean the action taken by the
court for initiating judicial proceedings against
the offender in respect of the offence regarding
which the complaint is filed. Before it can be
said that any Magistrate or court has taken
cognizance of an offence it must be shown that
he has applied his mind to the facts for the
purpose of proceeding further in the matter at
the instance of the complainant. If the
Magistrate or the court is shown to have
applied his mind not for the purpose of taking
action upon the complaint but for taking some
other kind of action contemplated under the
Code of Criminal Procedure such as ordering
investigation under Section 156(3) or issuing a
search warrant, he cannot be said to have taken
cognizance of the offence (Narayandas
Bhagwandas Madhavdas v. State of W.B. [AIR
1959 SC 1118 : 1959 Cri LJ 1368] and Gopal
Das Sindhi v. State of Assam [AIR 1961 SC 986
: (1961) 2 Cri LJ 39] )."
4. Mr. Ashish Kumar, learned counsel appearing for the O.P.
No. 2 submits that it appears that the learned court has considered that
prematurely the case has been filed as such the order has been rightly
passed.
5. In view of the above, it appears that the learned revisional
court has set aside the order of taking cognizance only considering the
fact that the case has been filed prematurely and if such a situation is
there, the case of the petitioner is fully covered in the light of the
judgments of Hon'ble Supreme Court in the case of Narsingh Das
Tapadia (Supra) and further in the case of Yogendra Pratap Singh
Versus Savitry Pandey, reported in (2014) 10 SCC 713, wherein
certain guidelines have been issued by the Hon'ble Supreme court,
which is also in favour of the petitioner.
6. In view of the above, the revisional order dated 09.06.2015,
passed by the learned Principal Sessions Judge, Sahibganj, in Cr. Rev.
No. 102 of 2014, whereby the cognizance taken under Section 138 of
the NI Act against the O.P. No. 2 has been set aside and the revision
petition was allowed, in connection with P.C.R. Case No. 421 of 2014
(T.R. No. 694 of 2014), is hereby, set aside.
7. The matter is remitted back to the learned trial court to pass
a fresh order in accordance with law considering two of the judgments
(Supra).
8. Accordingly, this petition is disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
