PUSHPALATA VERMA Vs. SANJAY KUMAR RAJWADE

JUDGEMENT

(1.) The aforesaid two petitions are being disposed off by a common order as common issue of law based on similar facts, though in respect of two different cheques, arise for consideration.

(2.) Relevant facts of the present case, necessary for decision of the petition, are that the respondent filed a complaint alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (In short "the Act of 1881") against the petitioner on the allegation that the petitioner, who happens to be sister of the complainant, sought financial help of Rs. 5 Lakh for purchase of land and the complainant paid an amount of Rs. 3 Lakh in cash on 09-01-2006 and Rs. 2 Lakh cash on 06-02-2006.Towards discharge of the said liability, a cheque dated 01-01-2009 of Rs. 5 Lakh drawn on petitioner's bank-ICICI Bank, Branch Bhilai was given to the complainant. The said cheque was presented by the complainant to his banker State Bank of India, Branch Manikpur, Korba and the cheque was returned unpaid with an endorsement dated 14-01-2009 that the cheque has been dishonoured due to insufficient funds. Upon receiving communication from his banker, the complainant again approached the petitioner-accused, upon which, the petitioner informed that the complainant may not proceed for encashment till April, 2009, and thereafter, the same may be encashed. Therefore, the complainant again presented the cheque with his banker-State Bank of India, Banch Manikpur, Korba on 13-05-2009. The cheque was again dishonoured with the endorsement of insufficient funds vide endorsement dated 13-06-2009. A registered demand notice with acknowledgment due dated 18-06-2009 was issued, which was returned unserved on 10-07-2009. Thereafter, another registered demand notice with acknowledgement due was issued on 27-07-2009, which was received by the petitioner-accused on 03-08-2009, but neither any reply was given nor amount paid. Taking cognizance of the aforesaid complaint, the learned Magistrate registered offence under Section 138 of the Act of 1881 against the petitioner-accused on 03-10-2009 and issued process. The petitioner moved an application raising objection against the maintainability of the complaint, which was rejected on 18-11-2009 directing issuance of bailable warrant, against which, the petitioner has approached this Court by filing petition under Section 482 of the Cr. P. C.

(3.) In this case, the respondent-complainant filed a complaint before the Magistrate alleging commission of offence under Section 138 of the Act of 1881. It was alleged in the complaint that the petitioner sought financial help of Rs. 5 Lakh for purchase of land, whereupon the respondent-complainant gave Rs. 2 Lakh cash on 04-03-2007 and Rs. 3 Lakh cash on 13-04-2007. Towards discharge of the aforesaid liability for repayment of loan allegedly borrowed by the petitioner, a cheque dated 01-01-2009 for an amount of Rs. 5 Lakh was given by the petitioner to the complainant. The said cheque was presented by the complainant with his banker State Bank of India, Branch Korba and the said cheque was returned unpaid with the endorsement dated 16-01-2009 that the cheque is dishonoured due to insufficient fund. When the petitioner was contacted, the complainant was informed that he may not encash the same till April, 2009, and thereafter, the cheque may be presented. Thereafter, the complainant presented the cheque again on 12-05-2009, which was again returned unpaid with the endorsement dated 21-05-2009 that the cheque was again dishonoured due to insufficient fund and when the petitioner was contacted for repayment of amount and signature, the petitioner neither signed the cheque nor the amount was returned. A registered demand notice dated 18-06-2009 with acknowledgment due was issued by the complainant making demand of payment of the amount under the cheque, which was returned unserved on 10-07-2009. Thereafter, another registered notice dated 27-07-2009 with acknowledgment due was issued, which was received by the petitioner on 03-08-2009, but thereafter, neither any reply was given nor amount under the cheque was paid. The learned Magistrate took cognizance of offence under Section 138 of the Act of 1881 by registering offence against the petitioner on 03-10-2009 and issued process. The petitioner moved an application raising objection with regard to maintainability of complaint and prayed for dismissal, which was rejected on 18-11-2009, giving rise to the instant petition.