Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.10459 of 2010 ====================================================== 1. Bholey Shankar Kumar , proprietor , Veena Textile 2. Vijay Kumar, son of Bholey Shankar Kumar, Both residents of Mohalla- Vijai Bazar Nawada, P.O. and Police Station- Nawada, District-Nawada (below Central Bank, Nawada) .... .... Petitioner/s Versus 1. The State Of Bihar 2. Arbind Kumar, son of Kailash Sao, resident of Mohalla- Brahmani Colony , Station Road , Barh, P.O. Barh, R.S. Police Station, Barh, District-Patna. .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER ------------------- 4 06-08-2012 Heard Sri Sanjeev Ranjan, learned counsel for the petitioners, Md. Arif, learned Addl. Public Prosecutor and Sri Upendra Prasad, learned counsel, who was assisted by Smt. Beena Kumari Jaiswal, learned counsel appearing on behalf of Opp.Party no.2. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 11.08.2009 passed by learned Judicial Magistrate, 1st Class, Barh in Complaint Case No.243 C of 2009, whereby the learned Magistrate has taken cognizance of offence under Section 138 of the Negotiable Instrument Act (hereinafter referred to as the “N.I. Act”) and [STATUTE] . Patna High Court Cr.Misc. No.10459 of 2010 (4) dt.06-08-2012 2 / 6 2 Learned counsel for the petitioners, while assailing order of cognizance, has firstly argued that so far as cognizance order under Section 138 of the N.I.Act is concerned, the same is not sustainable in the eye of law on two grounds. It has been firstly argued that as per provision contained in Section 138 , read with Section 142 of the N.I.Act , it was mandatorily required to demand for cheque amount , failure to demanding the cheque amount will not attract penal provision under Section 138 of the N.I.Act. Secondly, it has been argued that even complaint was filed after one month of the period of limitation, as prescribed under Section 142 (b) of the N.I.Act. On the aforesaid two grounds, he has prayed for quashing of the order of cognizance. In support of his argument that demand for cheque amount is must for application of Section 138 of the N.I.Act. He has relied upon a Judgment of Apex Court reported in AIR 2000 SC 828; Suman Sethi Vs. Ajay K. Churiwal and Another. He has specifically referred to paragraph-8 of the said Judgment. For just decision in the matter, it would be appropriate to quote paragraph-8 of the said Judgment, which is as follows: “8. It is well-settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the “said amount” i.e. the cheque amount. If no such demand is made the Patna High Court Cr.Misc. No.10459 of 2010 (4) dt.06-08-2012 3 / 6 3 notice no doubt would fall short of its legal requirement. Where in addition to the “said amount” there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving the break-up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, the notice might well fail to meet the legal requirement and may be regarded as bad.” Learned counsel for the petitioners has further referred to paragraph-11 of legal notice, which was issued by the complainant to the petitioners. He submits that though the total cheque amount was Rs.40, 000/- , the complainant had demanded entire due amount i.e. Rs. 1, 51,805/-. According to learned counsel for the petitioners, in view of demanding excess amount from the cheque amount, notice may not be termed as valid notice in terms of provision, contained in [STATUTE] , it has been argued that those allegations are palpably false and, as such, entire order of cognizance is liable to be set Patna High Court Cr.Misc. No.10459 of 2010 (4) dt.06-08-2012 4 / 6 4 aside. Learned counsel for the complainant/Opp.Party no.2 has opposed the prayer of the petitioners. He submits that so far as offence under [STATUTE] is concerned, specific assertion has been made in paragraph-9 of the complaint petition. He further submits that there is no error in the order of cognizance. Besides hearing learned counsel for the parties, I have also perused the materials available on record. At the time of argument, it was accepted by learned counsel for the petitioners that hardly it can be said that first legal notice was received on 10th March, 2009 and in the present case, complaint was filed on 18.04.2009. So far demand of cheque amount is concerned, paragraph nos. 7 and 8 of the legal notice (Annexure-2 to the petition) shows specific assertion regarding cheque amount as well as regarding the fact showing demand of cheque amount. Of course, in the notice besides demanding cheque amount , the complainant demanded further amount, i.e. total amount of Rs.1,51,805/-. In view of specific assertion made in the notice, it cannot be said that the demand in respect of cheque amount was not made. On the contrary, there is specific demand of cheque amount i.e. Rs. 40,000/- and, as such, the petitioners may not get Patna High Court Cr.Misc. No.10459 of 2010 (4) dt.06-08-2012 5 / 6 5 any help from the Judgment of Suman Sethi’s case (supra). So far period of limitation is concerned, once it is accepted that first notice was received on 10th March, 2009, thereafter, in terms of Section 138 (c) of the N.I.Act after receipt

Applicable IPC Section: 323

Statute Text:
Section 323 of the Indian Penal Code. Voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.