IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39037 of 2007 M/s Tripathy Poultry Products Company , Sundarpur, Gyanpur, District –Bhadohi ( U.P.) through proprietor Sri Surendra Mohan Tripathi , son of Sri R.J.Tripathy, resident of Village- Hichhanpur, Sundarpur, P.O. & P.S. Gyanpur, District-Bhadohi ( Uttar Pradesh) ---------------------- Petitioner Versus 1. THE STATE OF BIHAR 2. M/S Amrit Feeds Ltd. at Surya Apartment, Frazer Road, Patna-1 Through Mr. Rakesh Kumar, the Executive Accounts M/S Amrit Feeds Limited , son of Late Birendra Narayan Verma, at 12 Surya Apartment, Frazer Road, Patna-1, resident of at Kamla Niwas, New Area Jakkanpur P.S. Jakkanpur , District-Patna ( Bihar) ------------------------ Opp.Parties. ----------- For the petitioner : Mr. Sunil Kumar Pathak, Advocate For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : Dr. Amrendra Kumar, Advocate. ------------- O R D E R M/S Tripathy Poultry Products Company , Sundarpur , Gyanpur in the district of Bhadohi ( Uttar Pradesh ) through its proprietor Surendra Mohan Tripathi, impleaded as one of the accused in Complaint Case No.108(C) of 2007 , has prayed for the quashing of the entire criminal proceeding arising therefrom including the order dated 9.5.2007 passed by Sri D.K.Singh , Judicial Magistrate, 1st Class, Patna , whereby cognizance under Sections 406 and 418 I.P.C. and Section 138 of the Negotiable Instrument Act( hereinafter referred to as “N. I.Act”) has been taken. M/S Amrit Feeds Ltd., through Mr. Rakesh Kumar, Executive, Accounts, herein impleaded as Opp.Party no.2, had filed the aforesaid complaint on 11.1.2007 stating therein inter alia that the complainant is a registered Company and is engaged in business of - 2 - manufacturing, producing and selling its products like poultry feeds in the State of Bihar and adjacent States of Uttar Pradesh, Jharkhand , Orissa, Assam etc. The accused petitioner firm is also engaged in the business of selling poultry feeds, substances etc. It is further alleged that Surendra Mohan Tripathi , the proprietor of accused firm had paid several visits to the Patna office of the complainant for his business and gradually took the complainant into his confidence . The complainant agreed to do business with the accused firm in course whereof , initially small quantity of poultry feeds preceded by payment in cash in advance were ordered for by the accused Company and thereafter, demands for huge quantity of poultry feeds on credit with assurances of full payment in cash were made and eventually it transpired at the time of closing of the account ledger of the accused for the period 1st April,2006 to October,2006 that a sum of Rs.77,979/- had become outstanding, which the accused was required to pay. It is alleged that the complainant Company made several requests for payment of the outstanding sum, which was conveniently avoided on one pretext or the other. Eventually, the accused Company stopped all business transactions with the complainant Company and the frequent visits of Surendra Mohan Tripathy , the proprietor of the accused firm, to the complainant’s office in connection with the business completely stopped and telephone calls by the complainant Company remained unanswered. It is further alleged that persuasions and requests, personal visit by the complainant had no effect on the accused Company. However, - 3 - curiously, on 17.10.2007, accused no.2 arrived at Patna office of the complainant Company and handed over a cheque dated 17.10.2007 for the amount of Rs.77,979/- drawn on Union Bank of India, Gyanpur Branch in Uttar Pradesh . Initially, an acceptance of the cheque was refused and a request was made to pay through cheque or demand draft, but on the insistence of accused no.2 and his assurances, the cheque was accepted and the cheque was sent for clearing on the same day with the Bankers of the complainant Company. However, on receipt of Bank Memo dated 13.11.2006, the complainant came to know that the said cheque had bounced due to insufficient funds in the account of the account- holder. On receipt of the Memo from the Bank ,officials of the complainant Company intimated the same to accused no.2 over phone and demanded payment of the said amount ,but accused no.2 on the contrary threatened Rakesh Kumar, the officials of the complainant Company, with dire consequences and refused to make payment of the amount of the bounced cheque as also return the goods. Legal notice thereafter was sent on 28.11.2006 through registered post to the Company as also to accused no.2 at the company’s address and the residential address of accused no.2 demanding payment of the amount of the cheque with interest thereupon @ 24 % per annum but no payment was forthcoming. Curiously, a reply to the legal notice was sent by accused no.2 denying his liability to pay since there had been no business transactions with the complainant Company and no amount therefor was due. It is further alleged that goods worth Rs.77, - 4 - 979/- are still under illegal dominion of the accused persons who have misappropriated the same with mala fide intentions. Admittedly,there was a business transaction between the parties since 2003 and payments were made earlier. From perusal of the complaint, it does not transpire that there was dishonest intention from the very beginning of the business transaction by the complainant or any inducement to obtain goods on false pretext. The act alleged in the complaint does not in the least make out a case either under Section 418 or 406 I.P.C. There are a catena of decisions of the Apex Court as also of this Court that for dues arising out of business transaction, no criminal offence can be said to have been made out and the remedies therefor lies else where. In that view of the matter, the offences either under Section 406 or 418 I.P.C. not having been made out the taking of offence thereunder is hereby quashed. Now coming to the offence under Section 138 of the N.I.Act, admittedly, the petitioner claims to have got knowledge of the bounced cheque on 13.11.2006 and notice was sent on 28.11.2006 which was within the statutory period but the complaint was filed on 11.1.2007 which is beyond the statutory period and cognizance thereupon was taken on 9.5.2007 beyond the statutory period of limitation , as prescribed under Section 142 of the N.I.Act.. Sub section (b) of Section 142 of the N.I.Act states that such complaint must be made within one month of the date on which cause of action arises under Clause (c) of proviso to Section 138 of the N.I.Act. - 5 - However, the proviso to the said sub section permits the court taking cognizance after prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period to condone the delay. But no such efforts have been made by the complainant to make out a case of condonation of limitation and no prayer in that regard having been made there is no order of the court condoning the delay in filing the complaint petition. Therefore, the taking of cognizance is barred by limitation. For the reasons stated above, the application is allowed and the impugned order taking cognizance is hereby quashed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 2nd July,2009 Nawal Kishore Singh/ A.F.R.