ARORA DISTILLERIES PVT LTD Vs. VIJAY ASSOCIATES

JUDGEMENT

(1.) THIS revision is for impugning the order dated 1st March, 2004, passed by Session Judge, Vidisha, in criminal Revision No. 89/03, whereby the learned judge has modified the order dated 24th april, 2003 passed by Additional Chief Judicial Magistrate, Vidisha in Criminal Case no. 444/02, framing of the charge against the respondents for the offence punishable under section 420 of IPC only, while the complaint was filed for the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the Act) along with Sections 406 and 420 of ipc. While modifying the order, the learned judge has observed that no charge under section 420 of IPC and 138 of the Act is made out and only a charge under Section 406 of IPC is made out.

(2.) THE facts which are not disputed by the parties in brief are, that one complaint dated 28. 4. 93 has been filed by the petitioner against the respondents for the offence punishable under Section 420 read with Section 406/34 of IPC and also under section 138 of the Act. It is alleged in the complaint that the petitioner is having a legal plant along with machineries fitted thereon, for production of liquor. Vide agreement dated 14. 5. 92, this plant was given to the respondents for ten years on the terms, that for first three months Rs. 33,333 per month, thereafter upto five years Rs. 65,000 per month and subsequent to that rs. 1,00,000 per month was to be paid by the respondents to the petitioner. The aforesaid amount was to be paid in advance upto 10th of every month and in default of payment, rs. 500 per day was to be paid as penalty. From the very beginning the petitioner entered into this contract having intention of dishonesty and cheating in their mind. Initially the amount for first three months was paid, thereafter they avoided making payment. Some allegations have been mentioned in paragraph 5 of the complaint with regard to an offence under Section 406 of ipc which are now not relevant to be reproduced, as with regard to that offence, a separate order has been passed by this court today in M. Cr. C. No. 4414/2004. 2 (A ). It is further alleged in the complaint, that when demand was made, one cheque amounting to Rs. 2,00,000 was drawn by the respondent No. 1 on behalf of the respondents in favour of the complainant, which was dishonoured. On 5. 1. 93, on the basis of the oral information received by him, the petitioner sent a notice to the respondents informing that the amount of cheque is to be paid. Thereafter, the respondent No. 1 orally informed the petitioner that within a few days he will deposit the amount in the bank, but despite that the bank did not pay the amount and informed in writing about dishonour of the cheque on 26. 3. 93. Thereafter, another notice was issued by the petitioner on 3. 4. 93 which was neither replied nor the payment was made. On the basis of these averments after recording evidence at before charge stage, the learned Magistrate framed charge on 24. 4. 2003 under Section 420 of IPC only and negated framing of the charge under Section 406 of IPC and under Section 138 of the Act. 2 (B ). Feeling aggrieved by the aforesaid order of the learned Magistrate, the respondents filed criminal revision No. 89/03 praying therein that charge under Section 420 of IPC is not made out. Vide impugned order dated 1. 3. 2004 passed by learned Sessions Judge, Vidisha, it has been observed that only charge under Section 406 of IPC is made out and no charge under Section 138 of the Act and 420 of IPC is made out. Feeling aggrieved by that order of the learned Judge dated 1. 3. 2004, the present criminal revision No. 253/04 has been filed by the petitioner praying therein that charge under Section 420 of IPC and under section 138 of the Act also ought to have been framed.

(3.) PARTIES have not argued anything with regard to the offence under Section 420 of ipc, nor the same has been pressed during arguments on behalf of the petitioner. With regard to offence under Section 138 of the act, it is only submitted by Shri Kaushik for the petitioner, that as per paragraph 8 of the complaint, notice issued on 5. 1. 93 was without receiving any written information from the bank. It was issued only on an oral information. The period of limitation can be counted from the notice after receiving the written information about dishonouring of the cheque from the bank, as observed by the Kerala High Court in the case of John v. George Jacob. As per the averment in paragraph 8, the petitioner received written information on 26. 3. 93. Thereafter, he issued notice on 3. 4. 93 and on that notice the complaint has been filed on 28. 4. 93 which is within time. With regard to the service of the notice, as to on what date the first or second notice was served, Shri kaushik could not reply.