Mahabir Singh vs Chandan Banerjee

Dr. Sarojnei Saksena, J.—The petitioner has filed this petition u/s 482 Cr.P.C. to quash the complaint filed against him u/s 138 of the Negotiable Instruments Act and u/s 420 IPC, on which summoning order has also been passed against him on October 12,1989.

The respondent-complainant filed a complaint against the petitioner alleging that the petitioner purchased goods from the respondent and issued two post dated cheques dated 12.4.1989 for Rs. 30,000/- and dated 8.6.1989 for Rs. 33,051.94 paise. The petitioner also executed an agreement in favour of the respondent, when these cheques were presented in the bank for encashment they were bounced by the bank and the remark given as "Refer to drawer". The respondent gave a notice to the petitioner to make the payment, but despite this when no payment was made he filed the complaint against the petitioner on July 18,1989. After recording preliminary evidence, the trial Magistrate passed the impugned summoning order.

The petitioners Learned Counsel contended that no notice was given to the petitioner regarding cheque dated June 8,1989, for Rs. 33,051.94 paise, when it was dishonored by the bank. The cheque for Rs. 30,000/- was presented in the bank on April 14,1989 and it was dishonored and returned on April 15,1988, but notice with regard to this cheque was given on May 11,1989, i.e. beyond 15 days from the date of return of this cheque. Thereafter complaint was filed on July 18,1989. Thus neither the notice was given within 15 days from the date of return of this cheque. Thereafter complaint was filed on July 18,1989. Thus neither the notice was given within 15 days from the date of dishonour of the cheque nor complaint was filed within the statutory period as laid down in Section 138 of the Negotiable Instruments Act. Hence the complaint is liable to be quashed.

petitioner''s Learned Counsel further contended that the controversy between the parties is of civil nature. If the petitioner has purchased certain goods from the respondent and has not paid its price or the cheque issued by him cold not be honored by the bank, it does not amount to an act of cheating. Hence, even prima facie offence u/s 420 IPC is not made out. He further pointed out that the respondent has already filed civil suit for the recovery of this amount against the petitioner. To support his above contentions, he has relied on Vinay Mehra v. State of Haryana and Others, 1993 ISJ (Banking) 198; Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar and Another, 1993 ISJ (Banking) 251 and Subhash Chander Goyal v. Siri Pal Jain, 1993 ISJ (Banking) 378.

The respondent''s Learned Counsel contended that so far as the dates are concerned, even in the complaint it is not mentioned as to when the complainant received the information that the cheque of Rs. 30,000/- is not encashed. The documents which the petitioner has filed along with the petition wee not filed in the Court below. No doubt, notice was given on May 11,1989, but whether it is beyond the statutory period of 15 days or not is a question of fact which is to be enquired by the trial Court. The complaint was filed on July 18,1989 but even the petitioner has not alleged as to when he received the notice dated May 11,1989, because cause of action will arise to the complainant on receipt of the notice by the petitioner and after that the period of limitation will start running. When the cheques wee issued by the petitioner and they were dishonored by the bank, he complaint filed by the respondent is competent u/s 138 of the Negotiable Instruments Act. Even if the respondent has filed a civil suit, that will not make the criminal complaint untenable because criminal proceedings cannot be quashed on the ground that civil suit has already been filed. Civil suit and criminal proceedings are independent and not alternative remedies. So far as the offence u/s 420 IPC is concerned, he contends that the petitioner issued two cheques of Rs. 30,000/- and Rs. 33,051.94 paise for making payment for the goods purchased by him from the respondent, but he had a dishonest intention of not making the payment; therefore, both the cheques were not honored by the bank. He also executed an agreement in favour of the respondent for the due payment of the price of the goods purchased, but he never intended to make the payment and, thus, cheated the complainant. On this count also, it cannot be said that the complaint u/s 420 IPC is not maintainable.

The respondent has not filed any reply. The petitioner has simply contended that cheque of Rs. 30,000/- was issued on April 12,1989. It was presented in the bank on April 14,1989, and was returned on April 15,1989. When this communication was received y the complaint-respondent, it is not mentioned by him. He has filed copy of the notice dated May 11,1989, which was sent in connection with cheque of Rs. 30,000/-. When he received this notice he is silent on this point. The limitation will start running from the date of receipt of the notice. Hence, at this stage it cannot be said that the complaint filed on July 18,1989, is either not maintainable or time barred on the above counts. These are questions of fact. The complainant has adduced preliminary evidence and will further adduce evidence before charge is framed against the petitioner. The petitioner has been summoned by the trial Magistrate. It is still open to him to raise these objections before the trial Magistrate. The Magistrate may drop the proceedings if he is satisfied that on reconsideration of complaint there is no offence for which the petitioner could be tried. He has jurisdiction to pass such an order.

So far as the offence u/s 420 IPC is concerned, in the complaint allegations to that effect are made. Still it is a question of fact. The complainant-respondent has a right to adduce evidence to prove his allegations. If he is unable to prove even prima facie the offence u/s 420 IPC, the petitioner would be discharged by the trial Magistrate.

At this stage, there is no ground to quash the complaint or the summoning order. Hence the petition is dismissed.