&"1 ,.'.7 Taai1 •w / @ HIGH COURT OF CHHATTI8GARH AT BILASPUR Cr.M.P. No. 113/2008 PETITIONBR Jugal Kishore Aganval VERSUS RESPONDENT Pradeep KumarAgarwal ORDER y Postfor 01/07/2008 Sd/- T.P. Sharma Judge \c " ^. ^- PETITIONER HIGH COURT OF CHHATTISGARH AT BILASPUR Cr.M.P. Ho. 113/2008 Jugal Kishore Agarwal, S/o Late Raia Narayan Aganval, aged abozit 65 years, r/o Qtr. No, 1/19, CivU Township, Rourkela-4, Distdct- Sundargarh, Orissa. VERSUS RESPONDENT Pradeep Kuiaar Agarv^^al, s/o Murarilal Aganval, aged about 42 years, r/o Amar Petrol Pump, Near Banaras Chowk, Thana & Thasil Ainbikapur, Distdct Sarguja, Chliattisgai'h. PETITION UNDBR SECTION 482 OF THB CODE OF CRIMINAL PROCBDURE.1973. (SB :Hon»bleMr. T.P.Sharma, J.) Present: Mr. B.D. Guru, Advocate for the petitioner Mr. Manoj Paranjpe, Advocate for the respondent. ORDBR (Passed oa l/ 7 /2008) 1. This petitlon has been fited by the petitioner for quashment of the proceeding of criminal cases No. 944/2005 and 140/2007 pending before Chlef Judicial Magistrate, Ambikapur. 2. The quashment prayed on the ground that crimina! compiaint pending before Chlef Judiciai Magistrate, Ambikapur against the petitioner is barred under the law and continuance ofthe proceedlng would amount to abuse of process. 3. Shri B.D. Guru, Advocate for the petitioner and Shri Manoj Paranjpe, Advocate for the respondent are heard. 4. Copy of the order-sheet of the complainant case, complainant, statement of the complainant and copy of other documents perused. 5. it is argued on behalf of the petitioner that according to compiaint and document filed on behaif of the compjalnant before Chief Judicia! Magistrate, cheque in dlspute was presented for encashment to the bank on 30/7/2007 same . / / »"? — v ^- was dishonored vide dated 31/7/2007 and information reiating to the dishonor ofthe cheque was rQceived by the respondent on 2/8/2003. Notice as required under Clause "Bof proviso to Section 138 of theNegotiable InstrumentsAct, 1881 ('m short 'the Act of 1881') was issued by the respondent on 2/8/2002 and second notlce was issued on 28/8/2002. Notice was served on petitioner and even respondent demanded the money by telephone. Petitioner failed to pay the amount of cheque then complaint was fiied on 24/5/2003. It is also argued on behalf of the petitioner that respondent had made the demand for payment of the amount by notice dated 2/8/2002 and 28/2/2002 but same was not paid within 30 days of the demand in accordance with the provisions of Clause -B of Section 142 of the Act of 1881. Respondent was requlred to file the compiaint within 1 month from the receipt of the notice but the present compiaint was filed on 18/5/2003 after lapse of 9 months from the flrst date of issuance of the notsce which is time barred in accordance with Clause- B of Sectlon 142 of the Act of 1881. 6. Petitioner has piaced reliance in the matter of Sli Import, USA vs. Exim Aides Silk Exporters. Banaalore . reported in (1998)4 SCC ^7 in which it has held that llmitation of 1 month begins from the receipt of first notice and not from any receipt of subsequent notice. Petitioner has further placed reliance in the matter of D. Vinod ShivaDpa vs. Nanda Bel'iapDa2. reoorted in (2000 6SCC 456 in which it has heid that cause of action to prosecute drawer of the cheque arises when the drawer faiis to make payment within 15 days of receipt of the notice. Petitioner has further piaced reliance in the matter of Prem Chand Vijav Kumar vs. YashpaJ Sinah and Another3 reported in (200514SCC 417 in which it has held by the Apex Court that drawer of cheque may prssent the cheque for payment of many time wlthin its validity period but when notice has been issued and payment not received within 15 days ofthe notice then drawer is required to file compiaint within 1 month '(1909)4 SCC 567 2 (2006) 6SCC 456 3 (2005)43cc 417 ^sr^ ./^^ '^ ^- from the date of recelptof the notice in accordance with the provision of Section 142(B)oftheActof1881. 7. On the other hand, it is argued on behalf of the petitioner that Court has rightiy taken cognizance, petitioner may agitate the matter before trial Court but in stead of agitating the matter before trlal Court petitioner has fiied instant petition for quashment of the proceeding even wlthout giving his appearance before the triai Court is not just and proper. The scope of interference in exercise of inherent powers is very limited and ia\¥is settled in this regard that inherent jurisdiction may be exercisedonly in exceptional circumstances such as (i) to give effect to an order under the Court (ii) to prevent abuse of the process of the Court and (iii) to otherwise secure the ends ofjustice. 8. This is a petltion for quashment of the criminal proceeding in exercise of power under Section 482 ofthe Cr.P.C., 1973 (hereinafter referred to as 'the Code'), the scope of interference is iimited and it may be exercised in exceptional circumstances in case of State of Puniab vs. Kasturi Lal4 reported in_2004C!^L^ (38681 (SC5. Apex Court observed that:- "Exercise of power under S. 482 of the Code is a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only savss the inherent power which the Court possessed before the enactment of the Code. it envisages three circumstances under which the inherent jurisdiction may be exercised, nameiy (i) to give effect to an order under the Code, (ii') to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. it is neither possibie nor desirable to !ay dov^n any infiexibie rule which wouid govern the exercise of inherent jurisdiction. No legisiative enactment deaiing with procedure can provide for all cases that may possible arise, Courts therefore, have inherent powers apart from express provissons of law which are necessary for proper discharge of functlons and duties Imposed upon them by law. That is the doctrine which llnds expression in the section which mereiy recognizes and preserves inherent powers ofthe High Courts. Ali Courts, whether civil or criminai possess, in the absence of any express provislon, as Inherent In their constitution, ail such ! 2004 Cr.LJ. 3866 (3868) (SC) 1 1 powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the section though wide has to be exercised sparingiy, carefully and with caution and only when such exerdse is justified by the tests specificaliy laid down in the section itself. !t is to be exercised ex debito justitlae to do real andsubstantia! justice for the administration of which aione Courts exisf. 9. In case of State of Harvana v. Bhaian Lai5. reoorted in A!R 1992 SC 604, the Apex Court has formuiated the guidelines which are as foliows:- (i) VVhere the allegations made in the first information report or the complaint, even if they are taken at their face vaiue and accepted in their entirety do not prima facie constitute any offencs Or make out a case againstthe accused. (ii) Where the ailegations in the first information report and other materials, if any, accompanying the FIR do not disciose a cognizable offence, justifying an investigation by poiice offlcers under S. 156(1) of the Code except under an order of a Maglstrate within the purview of S. 155(2) ofthe Code. Where the uncontroverted allegations made in the FIR or complaint and the evidence coliected in support ofthe same do not disdose.thecommission of any offence and make out a case against the accused. (iv) Where, tne siiegatsons in the FIR do not constitute a cognizabie offence but constitute only a non-cognizable offence, o investigation is permitted by a poiice officer without an order of a magistrate as contemplated under S. 155(2) of the Code. (v) Where the aiiegatlons made in the FiR or complaint are so absurd and mherentiy improbable on the basi's of which no prudent person can ever reach a just conciusion that there is sufficient ground for proceeding against the accused. (vi) Where there is an express legal bar engrafted in any of the provisions of the code or ths concerned Act (under which a crimina! proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (vii) Where a criminal proceeding is manifestty attended with mala fide and/or where the proceeding is 'AIR 1992 SC 604, -^ ^f' maliciousty instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due toprivate and personai grudge. 10. In the light of above legal proposition, ! examined the contentlon of the parties from the copy of complaint it reveals that after dishonored of the chsque notice for payment as required under proviso 2, Clause -B of Section 138 ofthe Act of 1881 was issued by the respondent on 2/8/2002 and 28/8/2002 but payment was not made by the petitioner. Respondent reminded to the petitioner by telephone but petitioner had not paid the moneyso demanded tiil 18/5/2003 and petitioner requested time of one month for payment and lastly complaint was filed on 24/5/2003. Petitioner has neither mentioned the date of receipt of the notice in his compiaint nor stated the samein his statement recorded under Section 200 of the Cr.PC. 1973. 11. It was necessary for the respondent to make clear and unambiguous allegation reiating to the limitation for filing of compiaint as required under Clause- B of Section 142 of the act for taking cognizance. Respondent has failed to make such allegation in his complaintbut it reveals from the complaint that as a consequent to the notice petitioner use to assure the respondent for payment, as heid in S'sl Import, USA and D. Vinod Shivappa (supra) the cause of action for filing of complaint in this case arose on receipt of first notice by the petitioner in absence of specific allegation relating to receipt of notice dated 2/8/2002 and ailegation relating to assurance on the basis of notice dated 28/8/2002.1t appears that notice was received wei! within time respondent has in stead offiiing complaint, remanded the petitioner for payment of the deais and lastly filed the complaint after lapse of S months ofthe first issuance ofthe notice. 12, In cass of complaint under Section 138 of the Negotlable Instruments Act, 1881 it is the complainant is required to make specific allegation relating to dishonor ofthe cheque, issuance ofthe notice, receipt ofthe notice and fijingofthe complaint within llmitation or sufficient cause as required under Sections 138 and 142 of the ^ IT Negotiable Instruments Act, 1881 if such complaint is not filed within limitation prescribed. 13. In the instant case complainant has made the allegation relating to the dishonor of the cheque, issuance of 2 notices but complainant has not made allegation that when the notice was received by the petitioner, whether complaint was filed within limitation or any sufficient cause for not making complaint within limitation. Complainant/respondent was under obligation to ailege that complaint filed was within limitation of any allegation and allegation that after receipt of notice petitioner assured him from time to time for payment shows that present complaint has been filed after the iimitation prescribed. He was prevented from fiiing the complaint for sufficient cause for some period, if complainant has not made any allegation relating to limitation or sufficient cause for not filing the complaint within iimitation and made allegation that on the basis of notice petitioner assured them timeto time that he will repay the !oan. These facts shows that notice was received by the petitioner within time and petitioner has failed to make payment but respondent has not fiied the complaint within limitation after receipt of notice by the petitioner. Compiaint filed on behalf ofthe respondent is time barred, the trial Court not competent to take cognizance barred by iaw and continuance of such proceeding wouid amount to the abuse of the process of the Court as held'in the ^ case of State of Haryana v. Bhajan Lai (supra). 14. This is a fit case in which inherent power may be invoked consequently, the petition is allowed and complaint case pending before the Chief Judicia! Magistrate, Ambikapur (probably at present Special Magistrate Ambikapur) in criminal Case No. 971/2008 is hereby quashed. Sd/- T.P. Sharma Judge 4