Subhash Roy @ Subhash Ray, son of Haripad Roy, residents of village –Parbatpur, Post v. 1. The State of Jharkhand 2. Udhistir Mahatha, S/o –Ambuj Mahta, R/o –Barkama, P.O.+P.S
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3502 of 2017 Subhash Roy @ Subhash Ray, son of Haripad Roy, residents of village –Parbatpur, Post Office –Batbinor, Police Station –Siyaljori, District – Bokaro. .... Petitioner Versus 1. The State of Jharkhand 2. Udhistir Mahatha, S/o –Ambuj Mahta, R/o –Barkama, P.O.+P.S. – Chandankayari, District -Bokaro. …. Opp. Parties P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State For the O.P. No.2 : Mr. R.R.S. Singh, Advocate : Mr. Jitendra Pandey, Addl. P.P. : Mr. Sanjeev Kr. Singh, Advocate : Mr. Sanjay Kumar, Advocate ….. By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding along with order dated 10.07.2017, passed by the learned Judicial Magistrate -1st Class, Bokaro in connection with C.P. Case No. 915 of 2016 by which the learned Judicial Magistrate -1st Class, Bokaro, has taken cognizance for the offence punishable under Section 138 of the Negotiable Instruments Act. 3. Drawing attention of this Court to the complaint filed by the complainant, it is submitted by the learned counsel for the 1 Cr.M.P. No.3502 of 2017 petitioner that the cheque issued by the petitioner is said to have been dishonoured on 30.07.2016. A legal notice issued by the complainant demanding payment of the amount has been sent to the petitioner on 20.08.2016. A reply to the said notice was given on 06.09.2016. The complaint was filed on 20.10.2016. Drawing attention of this Court to annexure-7 of the supplementary affidavit, the learned counsel for the petitioner submits that though it has not been mentioned in the complaint but the notice was received by the petitioner on 25.08.2016 and in his reply to the notice, the petitioner has also mentioned that he received the demand notice dated 18.08.2016 on 25.08.2016. It is next submitted by the learned counsel for the petitioner that as the notice of the complainant dated 20.08.2016 was served upon the petitioner on 25.08.2016, hence according to the proviso C of Section 138 of the Negotiable Instrument Act, the cause of action arose after 15 days from the date of the receipt of the notice. Thus the cause of action arose on 10.09.2016 and as per Section 142(1)(b) of the Negotiable Instrument Act, 1881, it was incumbent upon the complainant to file the complaint petition within one month from the date on which cause of action arose but the complaint petition was filed on 20.10.2016. Thus the complaint petition has been filed after one month from the date from which the cause of action arose. Hence, it is submitted that the prayer as prayed for in this criminal miscellaneous petition be allowed. 2 Cr.M.P. No.3502 of 2017 4. The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer as prayed for by this petitioner in this criminal miscellaneous petition and submits that the document filed by the petitioner are not the admitted documents of the complainant because the complainant has in no uncertain manner has mentioned that he issued the notice on 20.08.2016 and even in para -7 of this criminal miscellaneous petition, the petitioner has admitted the same but in the supplementary affidavit, the petitioner has annexed a reply purportedly issued by his advocate to the advocate of the complainant; in which the advocate of the petitioner has mentioned that the demand notice dated 18.08.2016 was received by his client on 25.08.2016, so certainly the claim of the petitioner that the notice dated 20.08.2016 issued by the lawyer of the complainant was served on 25.08.2016 upon the petitioner is not corroborated by the annexure-B, kept at page no.8 of the supplementary affidavit dated 23.07.2018. It is then submitted that the track consignment cannot conclusively establish that the same relates to the notice issued by the complainant dated 28.08.2016, as there is no corresponding consignment number mentioned anywhere in the complaint nor the petitioner has filed any document to show that the consignment number mentioned in the said tack consignment document, to conclusively establish that the same relates to the notice dated 20.0 8.2016 issued by the lawyer the complainant. It is then submitted that, as the petitioner 3 Cr.M.P. No.3502 of 2017 seeks quashing of the entire criminal proceeding, basing upon the disputed facts, so the petitioner is not entitled to the prayer prayed for in this criminal miscellaneous petition. It is next submitted that the petitioner can at best take such plea as his defence during the trial but the same is not a sufficient ground to quash the entire criminal proceeding. It is lastly submitted that this criminal miscellaneous petition being without any merit be dismissed. 5. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that, the only ground on which the petitioner has sought to quash the entire criminal proceeding is that the demand notice was served upon him on 25.08.2016. It is pertinent to mention that in the complaint, there is no averment as to on which date, the demand notice was served upon the petitioner. It is only the case of the petitioner that the same was served upon him on 25.08.2016 but as rightly submitted by the learned Addl. P.P. and the learned counsel for the opposite party no.2, the documents filed by the petitioner shows that the notice which was received by the petitioner on 25.08.2016 was of dated 18.08.2016 but the undisputed fact remains that the complainant issued the demand notice on 20.08.2016. There is no averment specifically nor any document has been brought into the record, to show that the notice dated 20.08.2016 was received by the petitioner on any particular day. 4 Cr.M.P. No.3502 of 2017 6. Under such circumstances, in view of this disputed plea of defence of the petitioner, this Court is not inclined to quash the entire criminal proceeding on the basis of such plea. Therefore,
Decision
this criminal miscellaneous petition is disposed of with liberty to the petitioner to raise these grounds mentioned in this criminal miscellaneous petition, in his defence during the appropriate stage of the trial, if necessary. The interim relief granted earlier vide order dated 29.08.2018 stands vacated. Registry is directed to intimate the court concerned forthwith. 7. 8. High Court of Jharkhand, Ranchi Dated the 8th August, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 5 Cr.M.P. No.3502 of 2017