SlnglaBench BEFORE THE HON'BLE HIGH CCtURT OFGHHATTISGARH AT&ILASPUR Cr.M.P. No. S3V^ 12011 PETmONER ?^th>---/;"1 PWtB»<tt»SMl--^^I^ ^•-••-""•""•'•"^" Ba<«». RESPONDENT Ganga Prasad Payasi, S/o. Late Janki Prasad Payasi, aged about 60 years, R/o. Vakil Colony, Surajpur, P.S. & Tahsil Surajpur, Dist. Sarguja (C.G.) (ACCUSED) VERSUS Rakesh Pairashar, S/o. Late Rewaram Parashar, aged about 45 years, R/o. Haldibadi, P.S. Chirmiri, Dist. Korea (C.G.),:;:,,.:;,,,.,__,.__ _^_^ (COMPLAINANT) PETITION UNDER SECTION 482 OF THECODe^OF CRIMINAL PROCEDURE AGAINST THEORDER^BATED 23^4.2011, PASSED IN CRIIWINAI. REVtSlON N0.85/20:i0 ARISING OUT OF ORDER DATED 06.09.20&y. PASSED IN CRtMlNAL CASE N0.437/2008'" AGAINST THE ORDER BY WHICH COGN12ANCE HAS BEEN TAKEN AND NOTICES HAVE BEEN ISSUED AGAINST THE PETmONER HEREIN FOR THE OFFENCE PUNISHABLE U/S.13S^' OF THE NEGOTIABLE INSTRUIWENT ACT ^ i l! tl>^~..' ri'. j=>. t^ n iin-An_nLLil^na i+ ^c* Ltn^Ar' rNS^ ^ HIGHCOURTOF CHHAniSQARH: BIU^PUR ^- S!nflfe_Bench:ifon^(eShriJWanindraM<di -=^ PETrriONER RESPONDENT Cr.M.P. No^34ffl011 Ganga Prasad Payasi Versus Rakesh Parastar a PETmON UNDER SECTION4820F THECODE OliCRlMNAL RROCEOURE Presenfc- ShriA.K.Prasad.counselforthepetitioner., Smt. Renu Kochar, counsel forthe respomlent. ORALORDER (Passed on 28th of November, 2011) > This petition under Section 482 CrPC has been filed by the petltioner assaiiing correctness and validity of order dated 25/4/2011 passed in criininai revision No.85/10 affirming the order dated 6/9/07 taking cognizance against the peUtioner. :v 2. The respondent filed a compteint ^ainrt the petitipner altoging commission of offence under Section 138of N^otiable Insfruments Acton fte :^-:.«.:'-.'..l-.^i' -. averments Intor atla that a cheque was given to the complainant in dlaAiaige of debt / iiability whlch was presented in the bank and wasdishenoured onaccount of insufficient funds, leadlng todemand under a noUce. The learned Magistrate vide its order dated 6^/2007 registered a case taking cognizance pf eommisston of offence under Sectton 138 of the NegotiaUe tnstrumerts Act. Aggrieved by the sald order, the pet'rtioner preferred a revision whteh has also been dianissed givir^ rlse to instant petition. 2 f «»»" 3. Leamed counsel for the petifloner contencted that the complaint.ef which '"&''•• ' ''." the cognizance has been taken by the learned Magistrate fe blissfuily vagueami< specific averments to make out essential ingredients of commi^ion of offence as also avermenls to prima facie show the complaint within limttadon, havenot been made. Leamed counsel forthe petitionersubmitsthat in the complaint, though it has been stated that dishonour of cheque was infbrmed on 18/08/06, ttiere is no !- • • '-•1:-1-<-"'#- l-t specific avermenis as to on which date, the notice was issued raisingiriemantfF He further submite that there Is no specific avwments as to whether nottce was sent by registered post or not. Further submission is Uiat there is no specifK; averment as to the date of recelpt of notiee nor any specific avermentthat aven after expiry of frfteen days from the date of receipt of notice, payment was n<< made giying rise to commission of offence and a cause of actton for filings complaint. In his submlssion, unless the specHic avennents are made which prima facie show that the complaint is within limitation, the Court bdow was not justifled in taking cognizanceand the petitioner could not be subjected to prosecution. si - t/ 4. On the other hand, i^irned counsel for the respondent sybm^ied that the eomplairrt, read as a whole, not only makes an averment regarding dishonour of cheque but also glving of demand notice within the Ume stipulated and that no payment has been made. Learned counsel for ttie respendent submte that in the complaint, it has been stated ttiat no acknowledgment was rece'ived from the postal department but it has been stated that a reply to petitioner's nottee was received on 7/11/06. Learned counsel for the respondent submits ttiat these averments made in the compiaint are sufRcient to register offence and the averments made in the complaint cannot be disbelieved at this stageuntess ttie complainant is given an opporiun'rty to prove ingredients of commtesion of offence and also to lead evidence to show the date on which the accused recewed notice. F- ^' 5. Aperusal of the complaint ffledby the respondent show that theavermenk has been made in the complaint that a cheque of Rs.4,50,OOQ/- >was issued towards payment due against supply of certain building materials** It has alsot been stated that along wltti memo dated 18/8/06, thechequewas retumed wtth an endorsement that the same couldnot be honoured due to insufficientlunds. Further averments have been made in the complaint that demand notice was given wjthin the sUpuiatBd period. In para 10 of the compiaint, it has been stated* that ttie accused did not take any steps for payment of the amount and the» acknowledgment of receipt of notice was not received from postal department and thereafter on 7/11/06, reply to notice was received, inwhich no speeific date of notice has been shown. Present is not a case where the comptainant himsetf has averred r^arding date of receipt of notice by the pefitioner. It is tfee case of the petitioner that the notice gwen by the complainant was received by him on 21/09/06. But that is the case of ttie petlttoner which may be raised in ttie defence. tn the compiaint, there is no specNic avermentse as to showthat the complainant himseff admits that the accused received notice on 21®9/06. Therefore, whether the complaint was within the period of llmBaUpn is a mcced question of law and fact. That issue can be decided only dier allowing the parties to lead evidence. The petitioner has admitted that he received notice however ttiere is a dispute with regard to the date of receipt of noBce. Por application provisions contained in Section 138 C and previsions contained in 4 « Section 142 of the Negotiable tnstmments Act, 1881, the date of receipt of notiee of demand by the accused is relerant. As there is a dispute with regard to ttiis aspect, it can be decided only after recording evidence. Therefore, t am not inclined to quash ttie complaint at this stege. The issue is required to be considered bythetrial Court. The petition is accordinglydismissed. s Deepti Sd/- Manindra Mohan Shrivastava Judge