Manju Shree vs State of Jharkhand and Another

Deoki Nandan Prasad, J.—This application has been filed u/s 482 of the Code of Criminal Procedure for quashing the order dated

3.2.2000, whereby and whereunder the learned Judicial Magistrate, Ranchi took cognizance for the offence u/s 138 of the Negotiable Instruments

Act, 1881 and also praying for quashing the entire proceedings of Complaint Case No. 141 of 1999.

The case of the prosecution in brief as alleged that both the complainant and the accused are known to each other. On 1.10.1994 the petitioner

took a friendly loan having without any interest with the consent of her husband from the complainant for their own use with an assurance that she

would refund it within a month and, at the same time in presence of the two witnesses she also executed hand note on Revenue Stamp and at the

same time the petitioner handed over acheque with the signature being No. A/238 346055 dated 18.12.1998 of State Bank of India, Main Road,

Ranchi and that was the post-dated cheque with an assurance that in case if she would fail to pay the amount in time the complainant may get it

encashed from the concerned Bank after 18.12.1998. After completion of one month the complainant requested the accused/petitioner to repay

the loan money on which the petitioner replied that the cheque which has been given to you would serve the purpose. Thereafter, the complainant

presented the cheque for encashment. The said cheque was sent for clearance which was returned on 4.2.1999 without making any payment on

the ground and with the objection ""Insufficient balance"". After getting information regarding dishonouring of the said cheque, complainant served a

legal notice to the petitioner and after receiving the legal notice the accused person replied the same through her lawyer on 24.2.1999 by which the

complainant came to know that he has been cheated by the accused/petitioner and this complaint case was filed, which was later on sent to the

Officer-in-Charge, Argora Police Station for institution and investigation u/s 165(3) Cr.P.C., but the police submitted report in the Court of the

Chief Judicial Magistrate, Ranchi stating therein that it is a civil matter. Thereafter, the complainant filed a petition before the Chief Judicial

Magistrate on 8.9.1999 for allowing the complainant to lead the evidence of witnesses.

The Chief Judicial Magistrate thereafter transferred the said case to the Court of Shri A.K. Rai, Judicial Magistrate, Ranchi u/s 192 of the Code of

Criminal Procedure for inquiry and disposal. The learned Magistrate recorded the statement of the complainant on solemn affirmation and the

witnesses were examined. After hearing the parties and perusing the evidence on record, the learned Magistrate found that there is sufficient

material to proceed with the case for the offence u/s 138 of the Negotiable Instruments Act, hence ordered for issuance of summon.

One counter affidavit has also been filed from the side of the complainant claiming therein that there is no illegality in the order impugned and the

accused/petitioner after taking the amount also executed a hand note in token of the receipt of the said amount and the cheque issued by the

petitioner was admittedly bounced by the Bank as there was no fund in the account of the petitioner. It is further claimed that the petitioner had

already filed petition u/s 205, Cr.P.C. in the Court below praying therein to dispense with her appearance and petition was allowed by the learned

Court below with a condition that she shall be physically present at the time of explaining accusation, at the time of recording statement u/s 313,

Cr. P.C. and at the time of pronouncing of judgment, but the petitioner/accused remained absent at the time of explaining accusation and as such

her petition allowing dispensing with her attendance/appearance was rejected. It is also stated that the petitioner and her husband are in habit of

taking money by playing fraud which will be evident from Annexure-A to the counter affidavit and the petition which is without any merit, is fit to be

dismissed.

Mr. Delip Jerath, the learned Counsel appearing on behalf of the petitioner assailed the order impugned on the ground that the learned Chief

Judicial Magistrate without taking cognizance transferred the case to the Court of Shri A.K. Rai, Judicial Magistrate, Ranchi for inquiry and

disposal, which is illegal as there is a specific provision u/s 192, Cr.P.C. that the Magistrate can make over the case only after taking cognizance.

He further argued that earlier the complaint was sent to the police u/s 156(3), Cr.P.C. and the police submitted Final Report stating that it is a case

of civil nature but even then the Court below without applying his mind took cognizance and on this score also the order impugned is liable to be

quashed. Further, it is submitted that Section 138 of the Negotiable Instruments Act is not applicable in the case as the petitioner had already

reported the matter to the District Administration, Purnia and the Deputy Commissioner, Ranchi as back as on 19.8.1998 about committing of

theft in her house when several articles including the signed cheques were stolen away from her house and she had also given the information to the

Manager, Bank of India, Ranchi Branch and, therefore, the order impugned is fit to be quashed.

On the other hand, Mr. R.N. Sahay, the learned Counsel appearing on behalf of the opposite party No. 2 submitted that there is no illegality in

the order impugned as the learned Magistrate after finding prima facie case proceeded with the case and issued summons as well as the

petitioner/accused had already filed a petition u/s 205, Cr.P.C. much earlier which was allowed by the Court below showing the conduct of the

petitioner/accused itself that she is unnecessarily filing frivolous petition in order to delay the disposal of the case as the petitioner/accused has not

appeared in the Court below during the time of explaining accusation and, therefore, the Court below issued bailable warrant of arrest against the

petitioner for her appearance in the case. It is further submitted that the learned Chief Judicial Magistrate had already taken cognizance in the

matter and thereafter the case was transferred to the Judicial Magistrate for inquiry u/s 202, Cr.P.C. and there was no illegality. It is further

submitted that though the petitioner/accused is claiming about committing theft in her house and sending information to the Officers including the

Bank, but no any FIR was lodged to this effect which itself falsified the story as made out by the petitioner/accused and that paper has been

created afterthought only to harass the complainant.

It is the true that the complaint case which was filed in the Court of the Chief Judicial Magistrate was sent earlier to the Officer Incharge u/s 156,

Cr.P.C. and the police also submitted Final Report explaining that it is a case of civil nature but the inquiry'' was made u/s 202, Cr.P.C. on the

complaint case and the said complaint case was made over by the learned Chief Judicial Magistrate to the file of Shri A.K. Rai, Judicial Magistrate

u/s 192, Cr.P.C. by the order dated 15.9.1999 and that order reveals as under:

Complainant files his attendance. Case called out. Heard the learned Counsel for the complainant and perused the complaint. Case is made over

to the file of Sri A.K. Rai, J.M. u/s 192, Cr.P.C. for inquiry and disposal. Complainant is directed to appear before the said Court on 17.9.99 for

S.A.

Apparently, the learned Chief Judicial Magistrate before handing over the said complaint case to the Court of Judicial Magistrate perused the

complaint petition. The word ""cognizance"" has nowhere been defined. When a Magistrate on receiving the complaint applies his mind for

proceeding under Sections 200-203, Cr.P.C., he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a), Cr.P.C.

Taking cognizance of an offence does not involve any formal action or action of any kind but occurs as soon as a Magistrate applies his mind to the

suspected commission of an offence. In the instance case, the learned Chief Judicial Magistrate before making over the case to the Court of

Magistrate, perused the complaint petition which includes an inference that the learned Chief Judicial Magistrate applied his mind before

proceeding with the case. Section 192 of the Code of Criminal Procedure reads as under:

Making over of cases to Magistrates--(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for

inquiry or trial to any competent Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make

over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and

thereupon such Magistrate may hold the inquiry or trial.

Section 200 of the Code of Criminal Procedure also provides for examination of the complainant on oath, which reads as under:

Examination of complainant.--A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the

witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the

witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses,--

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192 :

Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complaint and the witnesses, the

latter Magistrate need not re-examine them.

The Chief Judicial Magistrate is not obliged to examine the complainant on oath before making over the case to another Magistrate. He can do

so after taking cognizance and the expression ""taking cognizance"" would mean that the moment he perused the complaint for the purpose of

making over the case to another Magistrate u/s 192, Cr.P.C., he applies his mind and thereby he takes cognizance for proceeding with the case.

By observing that it is a case of civil nature by the police will not be sufficient to throw the whole complaint case without examining/inquiring the

evidence on record as required u/s 202, Cr.P.C. Thus, the learned Chief Judicial Magistrate has rightly made over the case to the Court of

Magistrate, Ist Class u/s 192, Cr.P.C. after taking cognizance as required under law.

No doubt, the petitioner/accused had taken the loan of Rs. 95,000/- from the complainant and in token of the same, she had executed hand

note and also issued a cheque which admittedly could not be encashed.

Section 138 of the Negotiable Instruments Act, 1881 reads as under :

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 one year, 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 fifteen 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"".

The cheque was presented to the Bank which was bounced as there was insufficient fund. Legal notice was also sent to the accused/petitioner

to which the reply was also made. Obviously, there was liability/debt in existence between the petitioner and the complainant and the cheque

purported to be discharged of the said debt/liability was returned by the Bank unpaid and as such the ingredients of Section 138 of the Negotiable

Instruments Act are available there and it is evident that the cheque was received/given for discharge in part or portion of the debt or liability.

It may be noted here that the petitioner/accused had filed a petition before the Court below u/s 205, Cr.P.C. which was allowed with a

condition that she would appear at three stages physically but obviously she failed to appear in the Court at the time of explaining of accusation,

resulting disallowing the privilege given u/s 205, Cr. P.C. It is also clear that no any FIR was lodged as regards to the allegation of committing of

theft of article including the cheque.

For the aforementioned reasons coupled with the discussions made above, it is evident that the Court below has rightly took cognizance of the

offence, which does not require to be disturbed. The petition being devoid of merit, is dismissed.