@E HI6H COURT OF JUDICATURE AT BILAsPUR CHHATTISGARH Criminai Revision N040 of 2002 POST FOR ORDER ON 13M MAY, 2004 4» Sd/— L.C. BHADOO Judge ‘ 1é§5§§oé4 i R \ APPLICANT/i Eviam Mohammad, AC€USED 5/0 Lafe Guhb Khan, Aged abou‘f 52 year-s, Residen‘r of Numni Chowk, Raja Talab, Raipur', Tehsi! & Distt: Qaipur (a6) - Versus - NON-APPLICANT/: Girjanand, COMPLAINANT 5/0 Him Singh Chandrakar, Aged abouf 52 years, Residen'r of Subhash Nagar, Kasani Dih, Durg, Tehsil & Dis'H'J Durq (C.G.) Q? H (@ HIé‘vH COURT OF JUDICATURE AT BILASPUR CHHATTI$$ARH Criminal Revision Noa40 of 20a2 Presen'i': — Mrs. Renu Kochar, Advocafe: For The appiicam‘ Mr. Vishnu Koshm, Advoca‘re: For The non-appiicunf/complainonf Before: Hon'ble Mr. Jusfice L.C. Bhadoo O R D E R (Passed on /Z # May] 2004) 1. The occused/applicon‘l' has preferred This crimina! revision under 5ecfion 397 read wiTh Sec‘i’ion 401 of The Cr.P.C. being aggrieved by 1'he order da‘red 08.11.2001 passed by The 1“ Addi’rional Sessions Judge/ Durg, in Criminal Revision No.175/2001, whereby The learned AddiTionai Sessions Judge seTraside The order daTed 23.05.2001 passed by’The Judicial MagisTraTe, 15* Class, Durg, dismissing The complainT of The non-applicanT herein filed againsT The applicanT for The commission APPLICANT/: Gulam Mohammad, ACCUSED 5/0 Lafe Guhb Khan, Aged abou‘r 52 years, Residenf of Numni Chowk, Raja Tabb, Raipur, Tehsil & Disft: Raipur (C.G.) — Versus - NON~APPLECANT/: Girjanand, k COMPLAINANT 5/0 Him Singh Chandrakar, Aged abouf 52 years, Residen'f of Subhash Nagar, Kcsar'i Dih, Durg, Tehsil & Dish‘; Durg (C.G.) Brief fads givir1g rise To filing of fhis criminal revision are “ihaf The non—appiicanf/compicaimni and fhe appiican? herein emered imo an agreemen‘? 3‘0 saie The agricuifuml ianci of 32.50 acme of Revemie Circie: Maridir Hasaud, Tehsii & Disiricf: Raipur, by fhe compiaiman‘i‘ +0 ‘i'he accused/appiican‘r for considera’rion of Rs.8,00,101/— mid ~ R$.50,101/- was paid as an advance by The appHccmf/accused To The non— applicani/complainanf and ‘fur’rher Rs.3,50,000/- were paid as mimme moriey Through cheque bearing No.983221 dated 28.02.200i arawn cm The STa’re Barik of India, Main 3ranc’n: Raipur. The said cheque was presenfed ‘ay “(he compiaimn‘i in The Cen‘irai Co-operai‘ive gann, 1 uurg, ix cn 28312001 and +he eaid Bank vide ifs regisi'ered ie‘H'er dafed 14.03.2001 informed The compiainam‘ Thai” fhe cheque cannoi' be honoured an accsunf of insufficien‘r amoun‘r in The said ’ bann i acceunT and The said inTimaTien was received by The compiainanT on 19.03.2001. On receiving This inTimeTion abouT The dishonour sf The cheque, The campiainan‘r gem” a noTice To The apphcanT herein under hegisTered AD. and URC. When The nan—appEicanT/ compiainanT did ncT receive The said amwhT in spiTe of The noTice, he fiied a complainT againsT The apeiican‘r on $342001 T'cr The offence punishabie under 5ecTiens 138 0f The NegaTiable InsTrumenTs ACT and 420 of The I.P.C. ()A . The learned Judicial MagisTraTe conducTed preliminary enquiry on The complainT and recorded The sTaTemenT of The oompiainanT and afTer hearing The counsel for The compioinanT passed an order ch 23.05.2001 and dismissed The compiianT observing ThaT as The cause of acTion V arises only when The accused rafTer receiving The noTice had noT paid amounT wiThin a period of 15 days. ' Since no evidence has been adduced regarding The receipT of The said noTice by The accused and There is no menTion even in The compiianT as To when The naTice was received by l‘u of offence under 5ecTions 13$ 0f The Nego‘riabk Insfrumen-I‘s ACT (md 420 6f w‘he ERG. ,,/ i f’ne accused and nor if has been sfa’red by The compiainah’; in his sfm‘emen‘r, ?herefore, The mgrediems of Secfion 138 (c) read wh‘h Secfion E42 (b) of The Negofiabie insTrumenTs ACT ara no‘r gafisfied. The learned Addifiond Sessiohs Judge vide The impugned arder ailowed ‘rhe revisim and cbserved Than“ prime facie offence under Sec‘hohs 138 of irhe Negofiabie Insh‘umehfs ACT and 420 of The E.P.€. are made ouf agains? fhe appiican? harem. Therefore, The order passed by The Judicia§ Magisfm’re was 3e? aside and The ma’n‘er was remanded back *ro The Magisfm‘ie for passing appropria’re order. . Eh '‘shis conneci‘ion, reievan’r provisions of 5ec1’i0hs 138 {Si M2 cf i’he Nego‘riabie Insfrumenfs ACT read as under: “138. 5ishanour af eheque for insufficiemy, em, of funds %n we account—Where any cheque drawn by a person on an accoun‘r mainfained by him wifh a banker for paymenf of any amoun'r of money 1‘0 anofher person from ou'r of Thaf accounf for fhe discharge, in whoie or in par‘r, of any debf or oTher fiabiiHy, is refurned by fhe bank unpaid, eifher because of The amounf of money sfanding fo The credif of fhaf accoum‘ is insufficienf To honour The cheque or fha'r if exceeds The amoun’r arranged fo be paid from fhaf accoun'r by an agreemenf made wifh The? bank' such person shal! be deemed fo have commiffed an offence and shall, wifhouf prejudice f0 any ofher provision of fhis Acf, be punished wifh imprisonmenf for a Term which may exfend 1’0 one year, or wifh fine which may exfend To Twice The amounT of The cheque; or wiTh bofh: Provided ThaT noThing conTained in This secTion shail appiy unless— (a) & (b) (C) The drawer of such cheque fails ‘I'o make fhe paymen'l' of fhe. said amoun‘l' of money To The payee or as fhe case may be, To fhe holder in due course of fhe cheque wifhin'fifTeen days of The receipf of The said noTice." ,H/ 4" “E42. Cogaizcmce of $§fense$—Nefwi?hs*mnding any'ming con‘minad in 'i’he Coda of Criminai Procedure 1973 (2 of 1974),— m courT shqli fake cogn§zance of my offence punishobb under Sec‘fion 7138 excepf upon a compiainf, in wrifing, made by fhe payee or, as The case may be, 'fhe holriew m dua course of 1-“he- cheque; (b) such complain? is made wi'r'niiq ome monfh of «“he do're on which the cause of acfion arises under cia‘use (c) of fhe proviso To Seciion 138; (C) : (S) ‘‘Eherefore, fhe iegai posi'rion as per The above provisions of SecTions 138 (c) & 142 (b) of ihe Nego‘iiable Irisfrumenfs' Ac“; cleariy eravisages ii’iai‘ if is ‘i‘he da‘i'e of "rhe acfuai service of The compiainan’r’s (iemand noiice on The accused, which gives rise i‘o cause of action under“ ciause (c) of The proviso To Sec’iion 138 for i‘he former- To iodge The compiaim‘ under §ecfion 138 of The Aci’ agains‘i The ia‘n‘e’r and fhm‘ ihis cause of ac‘iion arises on ‘i'he da‘i‘e when ihe said no‘iice has been shown fo be duiy served on ‘‘ihe accused and Thai if wi‘i‘hin 15 days of fhe receip‘r of "the nofice if ihe drawer- accused pays up The dishonoured cheque amoun'i' ’i'o ihe payee compiainan‘r or‘ The hoider in due course of The cheque, ihe cause of ac‘i’ion for ’i'he said purpose would cease f0 exisf. T.m fne I circumsfances, The cruciai poinf far sfarfihg The cause of acfion is fhe receipf of no‘rice by fhe accused for making paymenf of The idishonoured cheque issued by him and iT is furTher To be seen ThaT wheTher The compiainanT had piaced sufficienT maTeriai on record d‘isciosing The acTuai daTe of service of demand noTice on The accused ' so as To make ouT wheTher The cause of acTion for The former had ‘arisen f0 presen‘r The compiianf agains‘r fhe iaT‘i'er. , / During The course of The argumenTs, Mr. Vishnu KoshTal learned counsel for fhe non—applicanf/compiainan?‘ very fairly conceded 'fhaf These . a D U! @ iragrediem‘s are missing in 1’he complaim as we” as in fhe sm’remenf of ?he comP laimn‘r recorded . under Sec‘rion 200 of f‘ne Cr.P.C., as if is m? dear m" §’r hcm nof been sfafed in'fhe smfemen? of The compiaimm fhm‘ ac‘fuaiiy when The nofice of demand was received by fhe appiicam’, fhe dccused. Therefore, ‘ro i'his exfem‘ fhe order of The ieorned Triair Cour? Le. Judicidi Magisfmfe dafed‘ 23.05.2001 rejecféng :fhe complainam's compkxim’ for The offehce purishabie under Secfion “38 on 141a Negoimbe Insfrumenfs Ac? was righ‘r ana legal and se‘r‘hng aside Thaf order by The learned Addmonal Sessmns Judge is illegal. . Now coming To The second quesTion perusal of The order of The learned MagIsTraTe daled 23 05 2001 shows ThaT The learned MaglsTraTe has noT passed any order regarding The commissmn or non commission of offerce punishable under SecTIon 420 of Tne LRC. by The applicanT herein. When The complainT was filed for The commission of offence punishable under SecTion 138 of The NegoTiable InsTrumenTSAcT as well as under SecTion 420 of The I.P.C., The. learned MagisTraTe oughT To have recorded his saTisfacTion abouT boTh The offences, whereas The learned MagisTraTe had simply passed order regarding offence punishable under SecTion 138 of The ACT and had noT passed any order regarding The commission or non—commission of offence under SecTion 420 of The I‘P.C. by The applicanT herein. Therefore, To This exTenT, remanding The maTTer To The learned MagisTraTe for passing appropriaTe order afTer going Through The record is legal as no order regarding offence under SecTion 420 of The I.P.C. was passed by The Judicial MagisTraTe, 15* Class, D‘urg. , In The resulT, The revision is parTly allowed. As far’as The commission :of offence under SecTion 138 of The NegoTiabler InsTrumenTs ACT is concerned, The revision is allowed-and The order of The AddiTional Sessions‘J'udge is seT aside and ThaT of The Judicial MagisTraTe, 1ST Class, is resTored. However, as far as The complainT regarding The ,,2 l wmmission of offence under Section 420 of The I.P.C. is concerned, flne order of ‘fhe revisiona! Cour’r §s mainmined and The iearned Judicial Magiefm're offer hearing The counse! for ’rhe complainan‘r and affer perusai of fhe record, shall pass fhe order as To whe’rher on fhe fac‘rs, ev§dence and record available on The compiainf, offence under SecTion 420 of ‘g‘he I.P.C. is made ou‘r or no'r Sd/- L.C. BHADOO Judge /3¢A¢5.2004 50m