Patna High Court Cr.Misc. No.13116 of 2009 dt.22-07-2011 1 Criminal Miscellaneous No.13116 of 2009 ----------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------------ =========================================================== Dr. Rajuma Baudha aged 63years son of late Ma Chainag Sen, Ex-Chairman, Awadh Institute of Dental Sciences, Diwa Road Chenhat, Police Station- Chenhat, Lucknow (UP) .... .... Petitioner/s Versus 1. The State Of Bihar & 2. Dr. Sanjay Kumar, son of Sri Vijay Prasad, R/o Sadar Bazar, Danapur Cantt., P.S.-Danapur, Dist.- Patna .... .... Opposite Party/s =========================================================== Appearance: For the Petitioner/s : M/s Devendra Prasad Sinha and Rajesh Sinha, Advocates For the Opposite Party no.1: Mr. Bhanu Pratap Singh, APP For the Opposite Party no.2: Mr. Arun Kumar, Advocate =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) 1. The petitioner has sought quashing of the order dated 12.05.2008 by which the Judicial Magistrate, 1st class, Danapur, Patna, has taken cognizance under section 406 and 420 Indian Penal Code and section 138 of the Negotiable Instrument Act in Complaint Case No.133-C of 2008. 2. The case of the complainant is that accused persons visited the complainant at his house and requested him to join as Sr. Lecturer in Awadh Institute of Dental Sciences, Lucknow, giving him hopes of its bright future. On 01.02.2007 the complainant received appointment letter duly signed by the petitioner. Pursuant to which he joined the said institute and was promoted to the post of Reader. On 13.02.2007, the petitioner allegedly gave him twelve post dated cheques in his favour against salary account after TDS for the period February, 2007 to January, 2008. In Patna High Court Cr.Misc. No.13116 of 2009 dt.22-07-2011 2 due course of time, the complainant deposited eleven cheques out of which two cheques were credited in his account but rest nine cheques were dishonoured on account of ‘stop payment’ which was reported to him by the bank official of Canara Bank, Danapur Cantt Branch. It is alleged that the act of issuance of cheques by the petitioner without sufficient funds in his account was a criminal offence and amounts to criminal breach of trust, cheating and wrongful loss to the complainant. It is further alleged that amount of Rs.1,33,749/- was misappropriated by the accused persons. The complainant has averred that he sent a legal notice on 07.02.2008 through one Anil Kumar Gupta, Advocate, but till the filing of the complaint the cheques were not honoured and, therefore, the complaint was filed on 19.02.2008. 3. Counsel for the petitioner submits that the petitioner indeed was the Chairman of Awadh Institute of Dental Sciences, Lucknow, and had appointed the complainant as Sr. Lecturer in the said institute but he absented himself from April, 2007, on account of which he sent a notice to him. He also wrote about the retention of the post dated cheques given to him at the time of appointment and that his pay would not be released. He produced an agreement between the Institute and the complainant, wherein, one of the clause was that as Sr. Lecturer the Complainant would not resign from the Institute till the end of three years and if he did so, he would have to give a notice of three months prior at hand or salary for three months would be forfeited. It is also specifically mentioned that salary was fixed for Rs.16,000/- per month and, therefore, the amount being claimed by the complainant at this stage is completely absurd. Further submission is that under section 138 of the Negotiable Instrument Act cause of action arise only when the accused has not made payment within fifteen days of the receipt of notice. The complainant’s act of not waiting for the stipulated period and filing the complaint within twelve days of Patna High Court Cr.Misc. No.13116 of 2009 dt.22-07-2011 3 sending the notice to him, the complaint was bad so far as the offence punishable under section Negotiable Instrument Act is concerned. 4. On the other hand, counsel for the complainant submits that the petitioner is running a fake institution and has been hauled up by the police which some newspaper clipping demonstrate and, therefore, he should not be spared when he has cheated the complainant in the manner as he has done. Further submission is that in the facts of the case a clear case of cheating and misappropriation is made out. As for section 138 of the Negotiable Instrument Act, the counsel for the opposite party no.2 contends that since the notices were sent to Lucknow which is at a short distance from Patna, it may be presumed that it was received in very next few days and, therefore, the complaint was not filed in a hurry. He also submits that one of the accused persons in Lucknow had replied to the notice on 12.02.2008 and, therefore, it may be presumed that the petitioner had also received the said notice. Further submission of the counsel for the opposite party no.2 is that documents brought by the petitioner even in this application are false and fabricated and no agreement had been drawn up between the petitioner and the complainant. 5. The opposite party no.2 by filing a supplementary affidavit has brought on record the seven disputed cheques. The first cheque is dated 07.07.2007, the second one 07.08.2008, the third one 07.09.2007, the fourth one 08.10.2007, the fifth one 07.11.2007, the next one 07.12.2007 and the last one is 07.01.2008. The first two cheques were sent for clearance by the opposite party no.2 and a notification with regard to stop payment was received on 05.09.2007, whereafter on a second time two cheques were presented and dishonoured for the same reason on 14.01.2008, on which date the rest of the cheques were dishonoured. 6. There is no dispute that the cheques were dishonoured for which the petitioner has taken the plea that it is on account of violation of clause of the Patna High Court Cr.Misc. No.13116 of 2009 dt.22-07-2011 4 agreement that the petitioner had stopped payment. However, I am not inclined to look into causes of it. 7. There is no dispute that after these cheques were dishonoured on 14.01.2008, the opposite party no.2-the complainant sent legal notice on 07.02.2008 whereafter he filed the complaint on 19.02.2008. As per Section 138 of the Negotiable Instrument Act, there is not doubt that once any cheque is returned by the bank, the drawer of the said bank shall be deemed to have committed the offence punishable under the said section. However, the section shall be operational only when (a) that the cheque has been presented within a period of six months from the date of which it is drawn or within validity period whichever is earlier, (b) when a notice is given within thirty days of receipt of notice of non-payment and (c) when drawer fails to make payment within fifteen days of receipt of the said notice. 8. The important clause, therefore, is that even after the cause of action has arisen the drawee has a right to prosecute only when the accused fails to pay within fifteen days of receipt of the notice. In the present case, it is apparent that within nine days of sending the notice, the complaint was filed and evidently clause (c) of section 138 of the Negotiable Instrument Act is offended. This would make the prosecution of the petitioner untenable under section 138 of the Negotiable Instrument Act. 9. As for offence under section 406 and 420 Indian Penal Code are concerned, apart from bald allegation that the petitioner has misappropriated the complainant’s salary, there is no cogent proof of the same by way of pay slips which could be retained by the petitioner since he was allegedly drawing salary. Where section 420 is concerned, admittedly the relationship of the complainant and the petitioner was by way of agreement and when a clause of bilateral agreement was not honoured by one party the same would merely mean the breach of agreement, in my Patna High Court Cr.Misc. No.13116 of 2009 dt.22-07-2011 5 opinion, it would give rise to a civil dispute and no offence under section 420 Indian Penal Code would be made out. 10. In the result, this application is allowed and the order dated 12.05.2008 passed by the Judicial Magistrate, 1st class, Danapur, Patna, in Complaint Case No.133-C of 2008 is hereby set aside in so far as it relates to the petitioner alone. (Anjana Prakash,J.) Patna High Court, Patna Dated the 22nd July, 2011 NAFR JA/-