Vinay Patni @ Binay Patni vs State Of Jharkhand And Another

Sanjay Kumar Dwivedi , J

The notice upon the O.P.No.2 has already been effected which is recorded in the order dated 30.03.2022 and the matter was adjourned with a view to providing one more opportunity to the O.P.No.2 and the matter was again adjourned on 10.05.2022, 30.06.2022, 12.09.2022 and 17.10.2022 and on all these dates, the O.P.No.2 was not present. Identical is the situation today as on repeated call nobody has responded on behalf of the O.P.No.2. In view of this, the instant petition is being heard in absence of the O.P.no.2.

Heard Mr. Ajay Kumar Sah, the learned counsel for the petitioner and Mr. Shiv Shankar Kumar, the learned counsel appearing on behalf of the respondent State.

This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 22.12.2015 under section 138 of the Negotiable Instruments Act in connection with Complaint Case No.2867 of 2015 pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad.

Mr. Sah, the learned counsel appearing on behalf of the petitioner submits that the petitioner was Director of M/s Hira Concast Limited. He submits that the learned court has taken cognizance without considering the statutory period provided under the Negotiable Instruments Act. By way of referring the complaint, he submits that the cheque is dated 30.11.2014 whereas in paragraph no.iv of the complaint petition, the return date of the said cheque is mentioned as 02.04.2015 and the legal notice of the same is said to be dated 08.12.2015 as disclosed in paragraph no.vi of the complaint petition. On this ground, he submits that the learned court without applying judicial mind has taken cognizance.

The Court has perused the impugned order of cognizance dated 22.12.2015 and finds that in the said order, it is not disclosed about the satisfaction of the learned court without considering the statutory period provided under section 138 and 139 of the Negotiable Instruments Act, the said order has been passed. In the complaint petition, it has been disclosed that the cheque is dated 30.11.2014 and the returned memo is said to be dated 02.04.2015 and the legal notice is said to be dated 08.12.2015 and if such a situation is there, the learned court’s satisfaction with regard to statutory provision is required to be disclosed in the order taking cognizance. The complainant may take the advantage of proviso of the amended Act with regard to delay in filing of the complaint case, however, proper order on that point is required to be considered to be there of the learned court while he is taking cognizance if such a situation of statutory period is already in dispute in view of the admitted position in the compliant petition itself. There is no doubt that even if the company is under the liquidation, if the case is under section 138 of the Negotiable Instruments Act are there, the Director is liable as has been held by the Hon’ble Supreme Court in the case of P. Mohanraj v. M/s Shah Brothers Ispat Private Limited, (2021) 6 SCC 256, however, in the case in hand, satisfaction of the learned court is not recorded in the order taking cognizance so far as the statutory period is concerned.

In view of that, the impugned order dated 22.12.2015 in connection with Complaint Case No.2867 of 2015 pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad is set aside.

The matter is remitted back to the learned court to pass a fresh order in accordance with law.

This petition is disposed of.