Pramod Kumar Rath vs Aditya Steel Industries Ltd.

A.S. Naidu, J.—Invoking inherent jurisdiction u/s 482 of the Criminal Procedure Code the petitioner seeks to assaii the order dated 06.3.2002 passed by the learned S.D.J.M. (S), Cuttack in I (C) C.C No. 317 of 2001 taking cognizance of offence u/s 138 of the Negotiable Instrument Act, 1881 (here-in-after called "the Act") and issued summons to the accused.

Bereft of unnecessary details, the short facts as would be evident from the complaint petition filed by the opposite party, reveal that the complainant is the manufacturer of steel rods. The accused being a Super class Contractor on regular business transactions with the complainant used to purchase steel rods from the complainant availing credit facilities starting from 21st February, 1988 till 24th May, 2000. It was alleged that the accused had issued a cheque on 30 March, 2001 for a sum of Rs. 1,37,000/- drawn on Bank of India, Sahid Nagar Branch, Bhubaneswar. The said cheque was deposited by the complainant in the bank on 30th March, 2001. On 4th April, 2001 the banker returned the said cheque assigning reason that the amount "exceeds..arrangements". The complainant, it was alleged in the complaint petition, again deposited the said cheque on 19th September, 2001 at State Bank of India, Industrial Estate Branch, Cuttack. On 29.9.2001 the bank returned the cheque with the information that the amount exceeded arrangements. The bank also charged a sum of Rs. 433/- towards its service charges. The complainant within the stipulated period of 15 days issued notice in writing u/s 138(b) of the Act through his advocate calling upon the accused to pay the amount covered under the cheque. The accused received the notice sent by registered post as well as the telegram issued on 09.10.2001, but did not take any steps. Consequently the complaint petition was filed in the Court of learned S.D.J.M. (S), Cuttack. The learned Magistrate conducted enquiry required under the Criminal Procedure Code, examined the complainant on solemn affirmation, perused the complaint petition and on being satisfied that a prima facie case u/s 138 of the Act was made out took cognizance of offences and issued summons. The accused appeared and filed a petition u/s 205 of the Cr.P.C to dispense with personal attendance. The said prayer was rejected. Thereafter a petition was filed by the accused praying to recall the order of cognizance and to drop the proceeding. The learned Magistrate after hearing parties by a reasoned order dated 04.12.2002 rejected the petition. Being aggrieved the present Criminal Misc. Case has been filed mainly on the ground that the learned Magistrate has not properly appreciated the position of law in as much as an offence u/s 138 of the Act would construe to have been committed only when there exists a prima facie case and where it found that the cheque which has been drawn to discharge the legally enforceable liability has bounced and not otherwise.

According to Mr. Panda, learned Counsel for the petitioner, in the case at hand the amount is disputed and it is a specific case of the accused that by practising fraud and dishonestly as well as deceitfully the complainant presented the cheque in the bank though he was not required to do so. Thus the cheque having not been drawn to discharge the legally enforceable liability, the complaint petition was not maintainable. In support of such stand Mr.Panda relied upon several decisions and submitted that summoning an accused in a Criminal case is a serious matter and criminal law should not be set in motion as a matter of course. According to Mr. Panda the order of learned Magistrate reflects that he applied his mind to the facts and law applicable, examined the nature of allegations, evidence both oral and documentary and on being prima facie satisfied that there were sufficient materials to reveal that the complainant would succeed in bringing home the charge took cognizance of offence. In short, according to Mr. Panda the learned Magistrate has not properly applied his mind and the order of taking cognizance having been passed mechanically, the same ought to have been recalled.

On the other hand Mr. Lai, learned Counsel for the opposite party, strongly repudiated the submission made by Mr. Panda. At the threshold he challenged the maintainability of the Criminal Misc. Case u/s 482 of the Criminal Procedure Code. According to Mr. Lai though the order of taking cognizance was an interim order, the order dated 04.12.2002 rejecting the prayer of the petitioner to recall the order of taking cognizance being a final order is revisable u/s 397 read with Section 401 Cr.P.C. Therefore in the absence of any challenge to the order dated 04.12.2002 invoking revisional jurisdiction, the present petition filed u/s 482 Cr.P.C is not maintainable. Mr. Lai further submitted that whether the cheque was drawn to discharge in whole or in part any legally enforceable debt or liability goes to the core of the dispute and could not be taken into consideration at the time of taking cognizance of offence. Fact remains, the accused had issued a cheque. The said cheque was duly presented before the bank for encashment. The cheque bounced, as sufficient amount was not available in the account. A notice as required was issued by registered post and thereafter complaint case was filed u/s 138 of the Act. The complainant got himself examined, produced the document and the learned Magistrate after considering all facts and on being satisfied that a prima facie case was made out took cognizance of the offence. Thus according to Mr. Lai the Criminal Misc. Case is not maintainable and should be dismissed in limine.

Heard learned Counsel for the parties at length. Perused the materials available on record. Law is no more res integra that if there is any express provision in a statute governing particular subject matter, there is no scope for invoking the inherent power of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject matter Palaniappa Gounder Vs. State of Tamil Nadu and Others, .

Be that as it may, without entering into the arena of controversy as to whether the Criminal Misc. Case filed invoking inherent jurisdiction u/s 482 of Cr.P.C is maintainable or not, as the parties have approached this Court and argued their case at length, it would be proper to go into the merits. According to Mr. Panda, the learned Magistrate before taking cognizance ought to have considered as to whether the cheque was issued towards payment of legally enforceable debt or liability. But then such a plea is available to the accused only by way of defence. While taking cognizance a Court is required to see the materials which are made available before it by the complainant and the documents in support thereof. After perusing the materials and considering the statements recorded u/s 202 of Cr.P.C if the Court is prima facie satisfied that an offence is made out, it has the power to take cognizance of the same. At that stage no document purported to be based on defence plea can be considered K.N. Beena Vs. Muniyappan and Another, .

In the case at hand as would be evident from the facts, the ingredients of the offence u/s 138 of the Act are prima facie satisfied. The question as to whether the cheque issued by the accused was towards the agreed interest for delay in payment of the principal amount or not is a question of fact which has to be established by adducing evidence and cannot be considered at the time of taking cognizance.

After hearing learned Counsel for the parties and after going through the impugned order and other documents annexed to the petition this Court finds that the order of taking cognizance does not suffer from any infirmity or illegality. This Court therefore is not inclined to interfere with the impugned order. However as has been held by this Court in several cases complaint case alleging commission of offence u/s 138 of the Act can be disposed of mostly on the basis of documents and other evidence. In such a case presence of the accused on all dates is not necessary and the Court should only insist on presence of the accused on the dates on which appearance of the accused in Court is necessary for effectual adjudication. Therefore while disposing of the Criminal Misc. Case I direct that if the petitioner surrenders before the Court below and files regular petition for bail, he shall be released on bail on such terms and conditions as deemed just and proper by the Court below, if he has not been released in the meanwhile. Further his personal appearance shall not be insisted on all dates to which the case stands posted, except on the dates his presence is necessary.

The Complaint Case is pending since 2001. The Court below is directed to dispose of the same as expeditiously as possible.