Jharkhand High Court
Damodar Mallick @ Damodar Malik S/O ... vs The State Of Jharkhand on 8 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.2280 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2280 of 2021
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Damodar Mallick @ Damodar Malik S/o Gaganchandra Mallick
aged about 60 years R/O- Balanda, Kalunga P.O. + P.S.- Kalunga
Dist- Raurkela, Odisha ... Petitioner
Versus
1. The State of Jharkhand
2. Raj Kumar Sahu @ Dr. Raj Kumar Sahu S/O Sri Rathendra Nath
Sahu, R/O Sector IX D, street 38 Q. No 1534, P.O. + P.S.- Harla Sector
IX District Bokaro Jharkhand ... Opposite Parties
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For the Petitioner : Mr. Santosh Kumar, Advocate
For the State : Mr. Abhay Kr. Tiwari, Addl. P.P.
For the O.P. No.2 : Ms. Shruti Shrestha, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 482 of the Code of Criminal Procedure
with a prayer to quash the entire criminal proceeding including the order dated
20.06.2019 passed by learned Judicial Magistrate-1st Class, Bermo at Tenughat
in connection with C.P. Case No.746 of 2019 registered for the offence
punishable under Section 138 of the N.I. Act which is now pending in the court
of learned Judicial Magistrate-1st Class, Bermo at Tenughat.
3. The brief facts of the case is that the petitioner allegedly issued three
cheques i.e., one cheque dated 20.02.2019 for Rs.12,00,000/- and two cheques
dated 03.05.2019 for Rs.16,00,000/- each; all the 3 cheques of State Bank of
India, Kalunga Branch. The said three cheques were deposited by the
complainant with his banker and all the three cheques were returned with the
remarks "payment stopped by drawer" on 06.05.2019. The complainant
thereafter sent a demand/legal notice to the petitioner but it is the case of the
complainant that till today in spite of the said notice, the petitioner neither
returned the cheque amount nor gave any reply to the demand notice and the
complaint was filed on 14.06.2019. The undisputed fact remains that there is no
material in the record to suggest; as to whether the said demand notice for
payment of the money allegedly secured by the said three cheques was ever
received by the petitioner/accused of the case though it is mentioned in
paragraph-4 of the complaint that the three cheques were returned with the
remarks "payment stopped by drawer" on 06.05.2019 but learned counsel for
the petitioner draws the attention of this Court towards page-22-24 of the brief
and submits that the alleged cheque return memos filed by the complainant
along with the complaint shows that the cheques were returned on 05.07.2019
i.e. after filing of the Complaint Case No.746 of 2019 which was filed on
14.06.2019. It is stated in the complaint that the complainant sent demand/legal
notice to the accused-petitioner on 15.05.2019 but till today the petitioner
neither returned the total cheque amounts of Rs.44,00,000/- of the said three
cheques taken together nor replied to the demand notice.
4. Learned counsel for the petitioner further submits that the complaint is
pre-mature one as the complaint could have been filed at least after 45 days
from the date of issue of the notice as no service report of the said notice upon
the accused-petitioner has been filed. In support of his contention, learned
counsel for the petitioner relies upon the judgment of this Court in the case of
Shyam Sundar Singh @ Shyam Sunder Singh vs. State of Jharkhand &
Another reported in 2019 (3) JBCJ 676 (HC) paragraphs-7 of which reads as
under:-
7. "It is a settled principle of law that the period of reckoning of 15 days as
required under Section 138 (c ) read with section 142 of the N.I. Act in a
case where the complainant cannot bring on record any evidence as to
when the notice of demand of the cheque amount was received by the
accused is to start from the 30th day from the date of dispatch of the
demand-cum-legal notice hence the complaint at the earliest can be filed
only after 45 days from the date of dispatch of demand notice as has been
held by the Hon'ble Supreme Court of India in the case of Subodh S.
Salaskar vs. Jayprakash M. Shah and Another reported in 2009 (3)
SCC (Cri) 834 paragraph no. 25 of which reads as under:-
"25. The complaint petition admittedly was filed on 20-4-2001.
The notice having been sent on 17-1-2001, if the presumption of service
of notice within a reasonable time is raised, it should be deemed to have
been served at best within a period of thirty days from the date of
issuance thereof i.e. 16-2-2001. The accused was required to make
payment in terms of the said notice within fifteen days thereafter i.e. on
or about 2-3-2001. The complaint petition, therefore, should have been
filed by 2-4-2001."
5. Learned counsel for the petitioner further submits that even the demand
notice is also not in accordance with law as the demand notice can only be
issued after receipt of the information by the complainant that the cheque has
been dishonoured. Learned counsel for the petitioner further draws the
attention of this Court to the cheque return memo, the copy of which has been
kept at page-22-24 of the brief and the veracity of which remains undisputed
and has not been challenged by filing any counter-affidavit by the opposite
party No.2 though the case was filed on 20.09.2021 and the opposite party No.2
appeared in this case on 21.03.2022 and submits that the same shows that the
cheques were returned on 05.07.2019. Since, as per the claim of the
complainant, the demand notice was sent before the cheques were returned i.e.,
on 15.05.2019. So, the demand notice claimed to be issued by the claimant on
15.05.2019 cannot be termed as a notice as has been envisaged under the
proviso under Section (b) of the 138 of the N.I. Act because the same envisages
that the demand for the payment of amount of money mentioned in the cheque
is to be made by giving a notice in writing to the drawer of the cheque within
30 days of the receipt of the information from Bank regarding return of the
cheque as unpaid. So, the condition precedent for filing of the complaint under
Section 138 of the N.I. Act being that the opposite party No.2 must have issued
a notice of demand in writing after 05.07.2019 when the banker of the
complainant informed the complainant about the cheques have been returned
because of payment stopped by the drawer. It is further submitted by the
learned counsel for the petitioner that on this score also, the learned Magistrate
has committed a grave illegality in taking cognizance dated 20.06.2019.
6. Learned counsel for the petitioner further submits that the printed
format of the cheque itself shows that the cheques are valid for Rs.10,00,000/-
and under but the amount of cheques mentioned in the three cheques is more
than Rs.10,00,000/-, so otherwise also the cheques are not valid cheques in
terms of law.
Hence, it is submitted that the entire criminal proceeding including the
order dated 20.06.2019 passed by learned Judicial Magistrate-1st Class, Bermo at
Tenughat in connection with C.P. Case No.746 of 2019 which is now pending in
the court of learned Judicial Magistrate-1st Class, Bermo at Tenughat, be
quashed and set aside against the petitioner.
7. Learned Addl.P.P. appearing for the State and the learned counsel for the
opposite party No.2 on the other hand vehemently oppose the prayer for
quashing and setting aside the entire criminal proceeding including the order
dated 20.06.2019 passed by learned Judicial Magistrate-1st Class, Bermo at
Tenughat in connection with C.P. Case No.746 of 2019 and learned counsel for
the opposite party No.2 submits that liberty may be given to the opposite party
No.2/complainant to set right the shortcomings which have been pointed out
by the learned counsel for the petitioner.
8. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, it is pertinent to refer
Section 138 of the N.I. Act which reads as under:-
"138. Dishonour of cheque for insufficiency, etc., of
funds in the account.--Where any cheque drawn by a person on
an account maintained by him with a banker for payment of any
amount of money to another person from out of that account for the
discharge, in whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the amount of money
standing to the credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be paid from that
account by an agreement made with that bank, such person shall be
deemed to have committed an offence and shall, without prejudice to
any other provision of this Act, be punished with imprisonment for
a term which may extend to two years, or with fine which may
extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period
of six months from the date on which it is drawn or within the
period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said
amount of money by giving a notice in writing, to the drawer of
the cheque, within thirty days of the receipt of information by
him from the bank regarding the return of the cheque as unpaid;
and
(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.
(Emphasis supplied)
9. It is crystal clear from plain reading of Section 138 of the N.I. Act that the
drawer of a cheque; if fails to make the payment of the amount of the cheque to
the payee within 15 days of the receipt of the demand notice, then the
cognizance of the offence can be taken by learned Judicial Magistrate for the
offence punishable under Section 138 of the N.I. Act. The question arises what
if, there is no document to suggest that the demand notice in writing given by
the complainant-opposite party No.2 has been served upon the drawer of the
cheque, as has been held by the Hon'ble Supreme Court of India in the case of
the Subodh S.Salaskar vs. Jayprakash M. Shah & Another reported in (2008)
13 SCC 689 and which principle of law has been reiterated by this Court in the
case of Md. Siraj vs. State of Jharkhand & Another passed in Cr.M.P. No.1677
of 2022 dated 21st of November, 2023; that the law is well settled that in case
there is no material to suggest that such demand notice was ever served upon
drawer of the cheque or any material that such demand notice has returned
unserved within the period of 30 days from the date of the issue of such notice,
such demand notice is deemed to have been served on expiry of the period of
30 days from the date of issue of such notice and the cognizance of the offence
punishable under Section 138 of the N.I. Act can be taken if the drawer of
cheque fails to pay the amount as per the cheque within 15 days of such
deemed service of notice. So considering the claim of the complainant that the
notice was sent on 15.05.2019 and the complaint was filed on 14.06.2019
without any material to suggest that during that period the petitioner had
received notice of demand and 15 days have elapsed after receipt of such notice
of demand on or before 14.06.2019, this Court has no hesitation in holding that
the complaint is pre-mature, hence, the cognizance is bad in law.
10. As rightly pointed out by the learned counsel for the petitioner, since the
demand notice for repayment of the movements and in the cheque was
admittedly issue before receiving the information from the bankers by the
complainant that such cheques have been dishonoured; hence this Court has no
hesitation in holding that the alleged demand notice for payment of the cheque
amount dated 15.05.2019, cannot be termed as a valid and legal demands notice
for the cheque which was returned on 05.07.2019. It is needless to mention, that
the sine qua non for the magistrate or the cognizance of the offence is that there
has to be valid demand notice issued by the complainant but 15 days after
receipt of such notice the drawer of the cheque did not pay the cheque amount.
Thus, on this score also the cognizance taken by the learned Magistrate is bad
in law. It is also pertinent to mention here the cheques having been issued for
the amount of more than 10 lakhs even though the cheques themselves show
that the upper limit is rupees 10 lakhs; hence, such cheque cannot be termed as
valid cheque.
11. Considering the aforesaid fact that the complaint was filed pre-maturely
and without a valid notice of demand after the opposite party No.2 received
information from the bank regarding return of the cheque as unpaid on
05.07.2019, hence, the entire criminal proceeding including the order dated
20.06.2019 passed by learned Judicial Magistrate-1st Class, Bermo at Tenughat
in connection with C.P. Case No.746 of 2019 which is now pending in the court
of learned Judicial Magistrate-1st Class, Bermo at Tenughat, being not
sustainable in law, is quashed and set aside.
12. Accordingly the prayer to quash and set aside the entire criminal
proceeding including the order dated 20.06.2019 passed by learned Judicial
Magistrate-1st Class, Bermo at Tenughat in connection with C.P. Case No.746 of
2019 which is now pending in the court of learned Judicial Magistrate-1st Class,
Bermo at Tenughat is allowed.
13. The opposite party No.2 may pursue any other remedy, if available in
law, in accordance with law.
14. In the result, this Cr.M.P. stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 08th January, 2024
AFR/ Animesh
