HEMANT SHARMA Vs. KISHORILAL VANSHKAR

JUDGEMENT

(1.) THIS petition is for impugning the order dated 29-7-2006 passed by JMFC, dabra in Criminal Case No. 906/05, whereby the learned Judge has rejected an application filed under Section 203 of Cr. PC by the petitioner on the ground that once the cognizance has been taken, the learned Magistrate is not empowered to consider the case for its dismissal under Section 203 of Cr. PC.

(2.) THE only question involved in the petition is - whether a complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the Act, before the expiry of a period of 15 days deserves to be quashed as being pre-mature?

(3.) TO understand in better way, the relevant Section 138 of the Act is reproduced herein-below :-"138. Dishonour of cheque for insufficiency, etc. of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years) or with fine which may extent to twice the amount of the cheque, or with both : provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. (Emphasis supplied)It provides that if within 15 days of the service of the notice of demand the payment is not made by the drawer of the cheque, action under this provision can be taken against him. On perusal of the impugned order, it appears that notice of demand was issued on 29-7-2007, although the same could not be served on the drawer, the petitioner herein and returned by the post office but on the basis of that notice, the learned Magistrate has observed in the impugned order that it was served on 2-8-2005, which has not been countered by Shri narwaria during his argument. As observed in the order, it is also admitted by shri Narwaria that complaint has been filed on 13-8-2005, that is before 15 days of the service. On this ground, upon appearance by the petitioner before the learned Magistrate, he filed an application under Section 203 of Cr. PC for quashing of the complaint, as the same is pre-mature. The application has been rejected by the learned Magistrate vide impugned order on 29-7-2006, on the ground that he has already taken cognizance and issued process under Section 204 of Cr. PC against the petitioner, hence he can't go back and review his order. Thus, the application has not been rejected on merits. Feeling aggrieved, this petition by the petitioner.