Vinod Kumar Sinha, Aged about 62 years, S/O Late Nand Kishore Prasad, Resident of v. 1. The State of Jharkhand 2. Subodh Kumar, Son of Late Kalueswar Singh, Resident
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3246 of 2021 ------ Vinod Kumar Sinha, Aged about 62 years, S/O Late Nand Kishore Prasad, Resident of Village – Jamalpur, P.O.- Gamharia, P.S.- Adityapur, District- Seraikella-Kharsawan, Jharkhand … Petitioner Versus 1. The State of Jharkhand 2. Subodh Kumar, Son of Late Kalueswar Singh, Resident of Village- Road No.10, Jagannathpur, Bada Gamharia, P.O. & P.S.- Gamharia, Opposite Parties District- Seraikela-Kharsawan, Jharkhand… For the Petitioner For the State For the O.P. No.2 ------
Legal Reasoning
prima facie case for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 and ordered for issue of summons. 4. Learned counsel for the petitioner submits that the petitioner has paid the entire consideration amount of the agreement to sell dated 15.12.2020 and the cheque in question was issued by the complainant after the Officer In- Charge of Gamharia Police Station gave option to the petitioner to either issue a cheque of Rs.1,26,500/- or go to jail. The petitioner, his wife and his son were frightened by the terror of the said Officer In-Charge and they opted for the first option of issuing a cheque of Rs.1,26,500/- and as the Officer In-Charge threatened the petitioner that if the petitioner writes anywhere in protest or raises his voice against the Officer In-Charge then the petitioner will be ready to face bad consequences but after the petitioner calmed down he submitted a written report to the Superintendent of Police, Seraikella-Kharsawan on 19.04.2021. The complainant presented the cheque before the bank and thereafter without serving the legal notice to the petitioner in a hurry, the complainant filed Complaint Case No.451 of 2021 but the same was dismissed 2 Cr. M.P. No.3246 of 2021 vide order dated 06.09.2021. It is next submitted that the trial court has not followed the provisions of law. 5. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of T. T. Antony vs. State of Kerela & Others reported in (2001) 6 SCC 181 wherein in paragraph-27 it has been observed by the Hon’ble Supreme Court of India that in case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or Final Report under Section 173 (2) of Cr.P.C. has been forwarded to the Magistrate, may be a fit case for exercise of the power under Section 482 of the Cr.P.C. or under Articles 226/227 of the Constitution of India and submits that in this case also the learned Magistrate, found prima facie case and the second complaint. Hence, it is submitted that the prayer as made in this Cr.M.P., be allowed. 6. Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 submit that the complainant filed Complaint Case No.451 of 2021 in the court of learned Chief Judicial Magistrate, Seraikella-Kharsawan prematurely and after coming to know about the error committed by him under legal advise, filed a fresh complaint as even after the expiry of the period within which the petitioner has to return the money the petitioner failed to pay that amount. It is next submitted that the ratio of the case of T. T. Antony vs. State of Kerela & Others (supra) is not attracted in this case as this case do not involve lodging of any F.I.R. rather both the cases filed are complaint cases that 3 Cr. M.P. No.3246 of 2021 too involving only the offences punishable under Section 138 of the Negotiable Instrument Act, 1881 and there is specific provision in the statute itself that such a case can be filed only through a complaint and no F.I.R. can be lodged with the police involving the offence punishable under Section 138 of the Negotiable Instrument Act, 1881. Hence, it is submitted that there is no bar in filing a second complaint when the first complaint was filed prematurely and such premature complaint is of no consequence and does not prohibit, a fresh complaint, after the offence is made out. Hence, it is submitted that no illegality having been committed by the learned Chief Judicial Magistrate, Seraikella- Kharsawan in Complaint Case No.568 of 2021, merely because the Complaint Case No.451 of 2021 was also filed by the complainant which has been dismissed being premature, is not a ground to quash the entire criminal proceedings of Complaint Case No.568 of 2021. It is next submitted that the undisputed fact remains that the petitioner issued a cheque of Rs.1,26,500/- to the complainant and the same was dishonoured and after notice of demand for payment of the said amount was issued by the petitioner the same has not been paid by the petitioner to the complainant within the time stipulated, hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, so far as the contention of the petitioner that the cheque was issued by the petitioner under duress or that the petitioner has already paid the cheque amount to the complainant are concerned, the same are the defence of the petitioner, which the petitioner can 4 Cr. M.P. No.3246 of 2021 take during the course of trial but certainly the same disputed defence of the petitioner is not a ground to quash the entire criminal proceeding. 8. So far as the contention of the complainant having earlier filed Complaint Case No.451 of 2021 prematurely which has since been dismissed is concerned, in the considered opinion of this Court keeping in view the law relating to dishonour of cheque as has been mentioned in Section 138 to 148 of the Negotiable Instruments Act, 1881, this Court is of the considered view that the cases for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 in Chapter-XVII, of the Negotiable Instruments Act, 1881 stand in a different footing than the other penal provisions of law, hence, the ratio of T. T. Antony vs. State of Kerela & Others (supra) which basically refers to registration of F.I.Rs, is not strictly applicable to the complaints filed involving the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The complaint filed by the complainant being Complaint Case No.451 of 2021 was erroneously filed by the complainant, because of the error of calculating the date of filing the complaint. 9. The question arises for consideration as to whether filing of a premature complaint debars, filing of a fresh complaint when the time becomes ripe to file the complaint? 10. The answer to the question is no more res integra as the Hon’ble Supreme Court of India in the case of Yogendra Pratap Singh v. Savitri Pandey reported in (2014) 10 SCC 713 which was also relied upon by the Hon’ble Supreme Court of India in the case of Gajanad Burange vs. Laxmi Chand Goyal reported in 2022 SCC OnLine SC 1711 wherein the Hon’ble Supreme Court has 5 Cr. M.P. No.3246 of 2021 categorically observed that in case of a premature complaint in a case involving the offence punishable under section 138 of the Negotiable Instruments Act, 1881 in case of a premature complaint, complainant was given the liberty to file a fresh complaint. In the case of Gajanad Burange vs. Laxmi Chand Goyal (supra), the Hon’ble Supreme Court of India even gave liberty to the complainant to approach the court concerned to condone the delay in filing the fresh complaint, as per the proviso of section 142 of the Negotiable Instruments Act, 1881. 11. It is a settled principle of law that the offence punishable under section 138 of the Negotiable Instruments Act, 1881 stands on a different footing from other penal offences. There is no specific provision debarring filing of a second complaint in respect of the same cheque upon its being dishonoured while presented for the second time. By the time Complaint Case No.451 of 2021 was filed by the complainant, the time was not ripe for filing the same. There is no material in the record to suggest that there was any infirmity in the Complaint Case No.568 of 2021 by the time the learned Magistrate found prima facie case and ordered issue of summon. By such time Complaint Case No. 451 of 2021 was not disposed of. This Court is of the considered view that at this stage it will not be proper to quash the entire proceedings of Complaint Case No.568 of 2021 when the learned Chief Judicial Magistrate, Seraikella-Kharsawan has not committed any illegality in taking cognizance of that case, merely because the premature complaint being Complaint Case No. 451 of 2021, was prior to Complaint Case No.568 of 2021. 6 Cr. M.P. No.3246 of 2021 12. Thus, this Court is of the considered view that filing of a premature complaint in respect of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 does not debar, filing of a fresh complaint; when the time becomes ripe to file such complaint. 13. Under such circumstances, this Court do not find any merit in this Cr.M.P. Accordingly, this Cr.M.P., being without any merit, is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 03rd of May, 2024 AFR/ Animesh-Saroj 7 Cr. M.P. No.3246 of 2021
Arguments
: Mr. Mahesh Kr. Sinha, Advocate : Mr. Shiv Shankar Kumar, Addl.P.P. : Mr. Vikash Kumar, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer for quashing the Complaint Case as well as the entire criminal proceeding in connection with C.C. Case No.568 of 2021 including the order taking cognizance dated 06.09.2021 whereby and where under the learned Chief Judicial Magistrate, Seraikella has taken cognizance of the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 and the said case is now pending before the learned Chief Judicial Magistrate, Seraikella. 1 Cr. M.P. No.3246 of 2021 3. The case of the complainant in brief is that the petitioner issued a cheque of Rs.1,26,500/- to the complainant. The same was presented by the complainant in bank on 01.05.2021 and on 24.05.2021 but the cheque stood dishonoured on the ground that the account was blocked. A notice for demanding payment of the cheque amount was sent to the petitioner on 04.06.2021 but the notice was returned back to the complainant. The complainant filed the said complaint case and considering the materials available in the record, the learned Chief Judicial Magistrate, Seraikella found