ANIL RICE MILLS Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The aforesaid two petitions under Section 482 of the Cr.P.C. are being disposed of by a common order as most of the grounds raised in both the cases between the same parties in respect of dishonour of two different cheques, are common on facts as well as on law.

(2.) The respondent No.2 filed a complaint against the petitioner alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (In short "the Act of 1881") that Ramlal, Sharad and Anil had taken an amount of Rs.2 Lakh stating it to be needed for petitioner No.1 Firm on 19.7.2001 on an assurance to return the same by 18.8.2001. It was further averred in the complaint that towards discharge of liability of repayment of loan, Ramlal gave a cheque signed by him bearing seal of petitioner No.lfirm on 18.8.2001 for an amount of Rs.2 Lakh at Raipur. which was submitted for encashment of the amount under the cheque by the complainant in its account maintained in the District Co-operative Central Bank, Raipur. Vide memo dated 22.8.2001 of the Bank, the complainant came to know on 23.8.2011 that the cheque issued by the petitioner No.lFirm and Ramlal was dishonoured due to insufficient fund. Thereafter, the complainant sent a registered notice of demand on 27.8.2001 to the Firm and Ramlal demanding payment of the amount under the cheque within a period of 15 days. Further averment in the complaint is that the information with regard to envelop containing notice was given by the Postman on 28.8.2001 to the accused persons, but they did not accept the notice, upon which, the Postman endorsed on 5.9.2001 that the notice was not taken, and the same was returned. It was alleged that even after giving demand notice, no payment was made within a period of 15 days, and thereby, offence under Section 138 of the Act of 1881 was committed. Preliminary statement of the complainant was recorded and the learned Magistrate registered offence against the petitioners. An application under Section 245(2) of the Cr.P.C. was filed claiming discharge on the submission that the petitioner No.4 Anil Kumar Agrawal was not the Partner of the Firm. The application was however rejected on 12.9.2002. Aggrieved by the rejection order, revision petition was filed, which too has been dismissed vide impugned order dated 24.8.2004.

(3.) The respondent No.2 filed a complaint against the petitioners No.1 to 3 alleging commission of offence under Section 138 of the Act of 1881. In the complaint, it has been averred that Ramlal, Sharad and Anil Kumar Agrawal obtained a loan of Rs.3 Lakh for the need of the petitioner No.l Firm on 18.7.2001. It has been averred that towards discharge of the aforesaid loan, Sharad Agrawal issued a cheque under signature and seal of the Firm for an amount of Rs.3 lakh on 8.8.2001 and gave it to the complainant on that day at Raipur, and when the cheque was submitted for encashment of the amount under the cheque in the complainant's account with his banker, vide memo dated 9.8.2001, the complainant was informed that the said cheque is dishonoured due to insufficient fund. Thereafter, counsel of the complainant sent a demand notice through registered post to the petitioners No.l to 3 and informing dishonour of the cheque and demand for payment of the amount under the cheque within 15 days. On 13.8.2001, the Postman informed regarding the envelop containing notice to the petitioners/accused, but they did not take the notice, whereafter the Postman returned the same on 20.8.2001. It is averred in the complaint that the petitioners/accused deliberately did not take the notice nor paid the amount within a period of 15 days, despite demand made, and thereby committed offence under Section 138 of the Act of 1881. After recording preliminary statement of the complainant, the learned Magistrate registered the offence under Section 138 of the Act of 1881. An application under Section 203 of the Cr.P.C. was filed on 29.1.2002 stating that the petitioner No.4 Anil Kumar Agrawal was not the partner of the Firm and further that no demand notice was sent to them, and therefore, they are liable to be discharged. It was further advanced in support of the application that the Petitioner No.4 Anil Kumar Agrawal was not the Partner of the Firm. It was also submitted that the cheque, in respect of which, the complaint has been lodged, a missing report has also been lodged in the police Station. Further ground was taken in the application that as the complaint itself was filed before expiry of stipulated period of 15 days, as specified in Section 138 (C) of the Act of 1881, the petitioners were liable to be discharged. The application was rejected by the learned trial Court vide order dated 28-08-2002. Aggrieved by the said order, revision was preferred, which too, has been dismissed by the impugned order dated 12.10.2004.