CRIMINAL MISCELLANEOUS No.17665 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------ Triloki Prasad Singh @ Triloki Prasad, Son of Late Rajeshwar Prasad Singh, resident of Mohalla- Mohanpur, near Debi Asthan, Punaichak, Police Station- Shastrinagar, District- Patna --------------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Shrikant Sharma, Son of Nanddeo Sharma, resident of Mohalla- Nehrunagar, P.S. Patliputra, District-Patna ----------- Opp.Parties. ---------- For the petitioner: S/Sri Yogesh Chandra Verma, Sr. Advoate Arun Kumar, Advocate For the State: Sri Raj Ballabh Sinha, A.P.P. --------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 14.9.1999 passed by Shri Panchanand Sharma, Judicial Magistrate, 1st Class,Patna in Complaint Case No.903C of 1999. By the said order, the learned Magistrate has taken cognizance of offence under Sections 406 and 420 of the Indian Penal Code and 138 of the Negotiable Instrument Act (hereinafter referred to as “the N.I.Act”). 2. Short fact of the case is that Opp.Party no.2 filed a complaint vide Complaint Case No.903C of 1999 disclosing therein that he was having good relation with the petitioner and he had given Rs.3 lacs to the petitioner in the month of October,1998 on an assurance that the petitioner will refund the amount to the complainant. 2 However, on 30.11.1998 the petitioner gave a cheque for Rs.1, 50,000/- with a request to present the said cheque in the month of May, 1999. It was further disclosed in the complaint petition that the petitioner had given assurance regarding refund of the remaining amount of Rs.1,50,000/-very soon. It was alleged that on 6.5.1999 the complainant presented the cheque in the Central Bank of India, Birla Mandir Branch. However, the same was dishonoured on 29.5.1999 and the complainant received information from the Bank on 1.6.1999. It was further asserted in the complaint petition that immediately within a period of fifteen days i.e. on 8.6.1999 the complainant sent a notice through an advocate to the petitioner by registered post and even after expiry period of one month from the issuance of registered notice, neither the petitioner gave any reply nor the registered notice was returned. Accordingly, the complaint petition was filed. After filing of the complaint petition, the complainant was examined on S.A. and the case was transferred to the court of Shri Panchanand Sharma, Judicial Magistrate, 1st Class under Section 192(1) of the Code of Criminal Procedure for enquiry and disposal and the learned Magistrate vide its order dated 14.9.1999 after conducting enquiry took cognizance of offence under Sections 406 and 420 of the Indian Penal Code and Section 138 of the N.I.Act. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. 4. Sri Yogesh Chandra Verma, learned Senior Counsel appearing on behalf of the petitioner has raised several grounds for challenging the order of cognizance. First of all, it was argued by Sri 3 Verma, learned Senior Counsel for the petitioner that since in the complaint petition itself it was not asserted as to whether registered notice was ever received by the petitioner or not, the learned Magistrate was not required to take cognizance under Section 138 of the N.I.Act. In view of specific provision contained in Section 138(b) of the N.I.Act, it was argued that unless it was established that notices were served on the petitioner and even thereafter he had not taken steps to clear the cheque amount, no offence under Section 138 of the N.I.Act can be made out. On this very point, learned Senior Counsel has heavily relied on a Judgment of the Hon’ble Supreme Court reported in AIR 2001 SC 676 ; Dalmia Cement (Bharat) Ltd. Vrs. M/S Galaxy Traders and Agencies Ltd. & Ors. He has referred to paragraph 5 of the said Judgment, which says that for constituting offence under Section 138 of the N.I.Act , it is necessary to establish that notice was actually served. Accordingly, it was submitted that in the complaint petition itself, since there was no specific averment regarding service of notice, in the present case no offence under Section 138 of the N.I.Act was made out. It was further argued that N.I.Act is a special Act and once the complainant has alleged commission of offence under the Special Act, the learned Magistrate was not required to take cognizance of offence even under the provision of Sections 406 and 420 of the Indian Penal Code besides taking cognizance of offence under Section 138 of the N.I.Act. It was further argued that the learned Magistrate, while passing the order of cognizance, has not applied its mind and in a mechanical manner the impugned order of cognizance was passed. Learned Senior Counsel for 4 the petitioner on the basis of complaint petition has argued that no offence is made out against the petitioner and, as such, the order of cognizance is liable to be set aside. 5. In this case, despite issuance and service of notice on Opp.Party no.2, at the time of hearing none has come forward to oppose the case on behalf of Opp.Party no.2. However, the name of learned counsel appearing on behalf of Opp.Party no.2 appears on the daily cause list. 6. In absence of Opp.Party no.2 I have heard Sri Raj Ballabh Singh, learned Addl.Public Prosecutor appearing on behalf of the State, who has opposed the prayer of the petitioner. 7. Besides hearing learned counsel for the parties, I have perused the materials available on record. I have also perused the complaint petition, which categorically states that the cheque, which was issued by the petitioner in favour of the complainant, was presented in the Bank and same was dishonoured. After the cheque was dishonoured , the complainant within the prescribed period of fifteen days got a notice issued through registered post to the petitioner. It is true that in the complaint petition, specific averment has not been made as to whether notice was actually served or not. The fact remains that notice was issued, as claimed by the complainant, through registered post. Whether it was received or not by the petitioner is a question of fact, which can be looked into after examining the entire materials available on record which includes statement of the complainant etc. In the present case, while filing the present petition besides filing of a 5 complaint petition and impugned order, the petitioner has not bothered to bring the other materials on record and in absence of those materials it is difficult for this Court to come to the conclusion as to whether the notice was actually served or not on the petitioner within the prescribed period as per the Act. Moreover, time without number, the Hon’ble Supreme Court has held that the power under Section 482 of the Code of Criminal Procedure is to be exercised in exceptional and rarest of rare cases. On the basis of materials available on record, particularly on the disputed question of fact, it would not be appropriate for this Court to consider the present case as an exceptional case warranting exercise of power under Section 482 of the Code of Criminal Procedure. 8. So far the decision relied upon by the petitioner is concerned, the Court is of the opinion that there is no dispute on the question of law but at the same time, while hearing a petition under Section 482 of the Code of Criminal Procedure, it would not be appropriate to go into detail to ascertain as to whether service of notice was validly affected or not. Those things can be looked into by the concerned court at the appropriate stage. So far the ground taken by Sri Verma, learned Senior Counsel for the petitioner that the learned Magistrate at the same time was not required to take cognizance of offence under Sections 406 and 420 of the Indian Penal Code besides offence under Section 138 of the N.I.Act, the Court is of the opinion that at this initial stage, those questions are not required to be looked into. If there is any grievance, the petitioner is at liberty to raise such grievance at the stage of charge. These points can be looked into at the 6 appropriate stage. Regarding the ground taken by the learned Senior Counsel for the petitioner that the learned Magistrate has passed order of cognizance in a mechanical matter, this Court has perused the impugned order. After going through the impugned order, the Court is satisfied that while passing the impugned order, there was no requirement to assign a detailed reason. Regarding the ground taken by the learned Senior Counsel for the petitioner that no offence is made out, the Court is of the opinion that the contents of the complaint petition itself indicate that prima facie offence under Section 138 of the N.I.Act was made out and the learned Magistrate, while passing the impugned order, has not committed any error. 9. Accordingly, I do not find any defect in the impugned order and the petition stands rejected. 10. In view of rejection of this petition, interim order of stay dated 14.12.2000 stands automatically vacated. Keeping in view the fact that the case remained pending for several years, it is desirable for this Court to direct the concerned court to proceed with the case expeditiously without granting any unnecessary adjournment. With above observation and direction, the petition stands rejected. Patna High Court,Patna Dated : the 29th July,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )