N C DEY Vs. RAUFRAHIM

JUDGEMENT

(1.) BY this application filed under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for quashing the proceeding being Case No. C-1884/89 under Section 138 of the Negotiable Instruments act, 1881 as amended by the Banking, Public Financial Institutions and the negotiable Instruments Laws (Amendment) Act, 1988.

(2.) THE complaint petition field by the complainant/opposite party in the Court of the learned Chief Metropolitan Magistrate, Calcutta discloses the following facts the complainant is the proprietor of M/s. Alika Travels, Calcutta. In course of business a sum of Rs. 20,000/- became due and payable by the accused (petitioner in this revisional application) to the complainant on account of transportation charge. The caused in discharge of the said existing liability issued an account-payee cheque bearing No. 489188 dated 6. 5. 1989 for the said sum of Rs. 20,000/- drawn on American Express Bank Ltd. Old Court House Street Branch, Calcutta. The said cheque was presented for encashment thought the complainant's banker namely New Bank of India, Shakespeare Sarani, Calcutta after 2 months as per request of the accused. But the said cheque was returned being dishonoured by non-payment with the remark, "full cover not received" which indicates that there was no sufficient fund in the bank account of the accused maintained with the said American Express Bank Ltd. The fact of the cheque being dishonored was brought to the notice of the accused and the accused requested the complainant to present the same cheque once again the encashment and the accused assured that the said cheque would definitely be encashed on presentation this time. Accordingly, the cheque was again presented at the aforesaid Bank through the complainant's banker as aforesaid but this time also the cheque bounced and was retuned with the remark 'refer to Drawer'. Under the circumstances complainant sent a notice through his learned Advocate to the accused on 26. 8. 1989 demanding payment of the said sum of Rs. 20,000/- covered by the said cheque within 15 days from the receipt of the said notice and it was also cautioned in the said notice that in case of failure to make the payment, legal consequences would ensue. The accsued duly received the said notice on 28. 8. 1989 but he did not make any payment against the said existing liability. Under the facts and circumstances of the case, the complainant prayed before the Court to take cognizance and issue process against the accused under Section 138 of the Negotiable Instruments Act, 1881 as amended.

(3.) THE learned Chief Metropolitan Magistrate took cognizance and transferred the case to the Court of the learned Metropolitan Magistrate, 14th Court, Calcutta under Section 192 (1) of the Code of Criminal Procedure. Upon transfer, the learned metropolitan Magistrate posted the case to 3. 10. 1989 for examination of witnesses.