Chandan Kumar vs The State of Bihar and Another

Narayan Roy, J.—Heard counsel for the parties. This application has been filed by the petitioner for quashing order dated 21.2.1995 passed by the Chief Judicial Magistrate, Dumka, in Case no. 38 of 1995 whereby and whereunder the learned Magistrate has taken cognizance of the offence u/s 420 of the Indian Penal Code and u/s 138 of the Negotiable Instruments Act (hereinafter referred to as the Act).

The short facts giving rise to this application are as follows;

A petition of complaint was filed by the opposite party no. 2 before the Chief Judicial Magistrate, Dumka, on 21.2.1995 stating therein that the accused petitioner had purchased two tyres on credit from M/s Dilip Motors on 5.11.1993 amounting to Rs. 13,398/-. Thereafter, the accused petitioner fraudulently issued a cheque on 5.5.1994 amounting to Rs. 12,398/- in the name of State Bank of India, Dumka Bazar Branch, in favour of M/s Dilip Motors. The said cheque was presented in the bank and the same was returned with an objection note "insufficient fund in the account of the accused". The complainant, accordingly, issued notice to the accused on 20.10.1994 in terms of subsection (b) of section 138 of the Act.

On the basis of the complaint the learned Magistrate, after examining the complainant on solemn affirmation took cognizance of the offence on 21.2.1995 and issued process against the petitioner.

Learned counsel for the petitioner submitted that even at the face of the complaint petition no offence whatsoever is made out against the petitioner u/s 420 of the Indian Penal Code and at best the complaint discloses facts constituting an offence u/s 138 of the Act as the complainant only alleges about bouncing of the cheque. Learned counsel further submitted that the order taking cognizance against the petitioner u/s 138 of the Act is also barred by limitation as envisaged u/s 142(b) of the Act. It is submitted that the notice issued by the complainant was received by the petitioner on 26.10.1994 whereas the complaint petition was filed on 21.2.1995. Learned counsel further submitted that in view of the provisions of Sub-section (b) of section 142 of the Act the complaint was maintainable if it could have been filed within one month from the date of cause of action. According to the counsel for the petitioner the cause of action in this case had arisen on 11.11.1994 and the complaint, therefore, could have been filed by 11.12.1994 and since admittedly it was filed on 21.2.1995 the order taking cognizance of the offence u/s 138 of the Act is barred under law. This question has already been set at rest in the case of Saket India Ltd. and Other vs. India Securities Ltd. [(1999) Vol. 3. S.C.C.1]. In the case of Saket India Ltd. (supra) the Apex Court has held that in view of section 142(b) of the Act the complaint has to be filed within one month from the date of the cause of action. Admittedly, in this case the cause of action had arisen for prosecution u/s 138 of the Act on 11.11.1994. Hence, the complaint filed on 21.2.1995 must be held beyond time.

Besides this question a categorical statement has been made by the petitioner in paragraph no. 15 of this application that after receipt of the information regarding dishonouring of the cheque, the petitioner paid the amount to the complainant. This aspect of the matter is not being disputed by the learned counsel appearing on behalf of the complainant. Considering the facts and circumstances of the case and for the reasons discussed above, this application is allowed and the prosecution launched against the petitioner is hereby quashed.