TUTU KAJI Vs. SARMILA GHOSH

JUDGEMENT

(1.) THE only issue on the basis of which the proceeding is sought to be quashed is that the learned Magistrate took cognizance of the offence punishable under section 138 of the Negotiable Instruments Act, 1881 pre -maturedly prior to the expiry of the statutory period under section 138(c) of the said Act.

(2.) IT is the petitioner's case that the cheque was dishonored on 11.8.2009 and the notice of dishonour under section 138(b) of the Negotiable Instruments Act was issued on 20.8.2009 which was received by the petitioner on 25.8.2009. Under section 138(c) of the Negotiable Instruments Act, the petitioner was entitled to pay the amount within 15 days of the receipt of the notice, i.e. 9.9.2009. However, cognizance had been taken on 5.9.2009. Mr. Ghosh, learned lawyer appearing for the petitioner relies on Narsingh Das Tapadia ­vs - Goverdhan Das Partani & Anr., AIR 2000 SC 2946 in support of such contention.

(3.) IN the instant case, the petitioner has not tendered the amount of the dishonoured cheque within the statutory timeframe. Hence, continuation of the impugned proceeding on the basis of premature cognizance cannot be said to have caused prejudice to him and occasioned failure of justice. On the other hand, the factual matrix in present case discloses the ingredients of the alleged offence. Moreso, the petitioner did not raise this issue at the earliest opportunity as required under section 465(2) of the Code of Criminal Procedure, 1973. He participated in the proceeding for four years and after the recording substantial part of evidence had belatedly raised this issue before the learned Magistrate. In Krishna Gupta ­vs - State of West Bengal, 2007 C.L.J 2502 similar objection did not find favour with this Court at the post conviction stage. I find that the allegations in the petition of complaint and the materials on record, as they stand today, disclose ingredients of the alleged offence. To quash the proceeding on the ground that the cognizance was taken prematurely when it is not the case of the petitioner that he had tendered the amount within the statutory limit as laid down in section 138(c) of the Negotiable Instruments Act, would amount to stifling of a legitimate prosecution on the mere score that the learned Magistrate had erroneously and in good faith, taken cognizance prematurely. Such error cannot be said to have prejudiced the petitioner and occasioned failure of justice particularly when there is nothing to show that the amount of the dishonoured cheque was sought to be refunded within the statutory limit and such issue had been raised at the earliest opportunity.