REKHA RANI PYNE Vs. SAMBHUNATH HALDER

JUDGEMENT

(1.) THIS revisional application under Section 482, cr. P. C. is at the instance of accused and is for quashing of the proceeding in a complaint case No. CR 74/97 under Section 138 of n. I. Act and section 420 of IPC which is pending before the S. D. I. M. , berhampore in the District of Murshidabad. O. P. No. 1 initiated the complaint proceeding before S. D. J. M. , Berhampore upon complaint that this petitioner gave a cheque to the complainant on 31. 10. 93 and which was presented to the State Bank of India, Khagra Branch on 15. 11. 93, but it was dishonoured on the ground of insufficiently of balance. Thereafter notice as required under section 138 was issued which came back with the endorsement 'not found'. Thereafter petition of complaint was filed. This petitioner moved 'this Court in revision for quashing of complaint case and this Court by order dated 23. 7. 96 has observed that no notice was served as yet and, therefore, complaint case is not maintainable. But this Court, granted liberty to the complainant to serve fresh notice and thereafter to file a petition of complaint if so advised. Accordingly, O. P. No. 1 filed a fresh complaint before the S. D. J. M. Berhampore on 4. 2. 97. It may be mentioned in this connection that notice as required under section 138 was issued in the meantime and the petitioner having failed to pay the amount as covered, in the cheque, complaint was lodged. Summons were issued and thereafter Warrant of arrest was issued against this petitioner by order dated 20. 7. 98. On being aggrieved by initiation of such proceeding and issuance of Warrant of arrest accused Rekha Rani Pyne and another has come up before this court with this revision.

(2.) THUS the point for consideration before this Court of revision is whether complaint as initiated by O. P. No. 1 for the second time is maintainable.

(3.) THERE is no dispute than an Account Payee Cheque drawn on u. B. I, was issued on 31. 10. 93 and O. P. No. 1 presented the Cheque for encashment in the S. B. I. , Khagra Branch but the Cheque was returned to O. P. No. 1 on 15. 1. 93 with the remark no sufficient balance. Thereafter, o. P. No. 1 sent lawyer's letter to the petitioner on 24. 12. 96 asking the petitioner to make payment forthwith, in default of which there was a threat of initiation of appropriate proceeding. Thereafter petition of complaint was filed.