BISWARANJAN PATTNAIK Vs. TEEM FINANCE COMPANY LTD.

JUDGEMENT

(1.) ACCUSED in I.C.C. Case No. 44 of 1997 in the Court of Subdivisional Judicial Magistrate, Bhubaneswar, has filed this application under Section 482 Code of Criminal Procedure, 1973 (in short 'the Code') with the prayer to quash the order of cognizance taken for the offence under Section 138 of the Negotiable Instrument Act, 1881 (in short 'the Act') vide the impugned order dated 30.1.1997. Complainant in that case is the opposite party here.

(2.) FOR discharge of the dues (debt) under the agreement dated 20.3.1995, Petitioner issued two cheques of State Bank of India (R.I.B. Branch) Rourkela bearing No. 928719 dated 20.9.96 and 928720 date 20.10.96 for Rs. 59, 400/ - each (in total Rs. 1.18,800/ -). On 30.10.96 opposite party deposited the same with his Banker i.e., punjab National Bank, Bapuji Nagar Branch, Bhubaneswar for encashment of both the cheques. The aforesaid branch of State Bank of India on 6.11.96 returned the cheque with the endorsement 'insufficient of balance' and that intimation was received by the opposite party on 13.11.96. There after, on 26.11.96 complainant sent notice in registered post with Acknowledgment Due ( in short 'A.D.') in accordance with the provision in Clause (b) of the Proviso to Section 138 of the Act making a demand for payment. That registered letter was received back undelivered on the Petitioner with the endorsement of the postal authority" No. such address at B. 29 Industrial Estate". Such endorsement was made on three dates and the last date was 5.12.96. on 21.1.97, opposite party filed the complaint in the Court of S.D.J.M. Bhubaneswar. In the application under Section 482 of the Code though it is mentioned that the complaint was filed on 20.1.97 but during the course of hearing, Petitioner filed misc. Case No. 2307/99 supported by affidavit of the Petitioner along with the certified copy of the order -sheet dated 21.1.97 in the complaint case and made a prayer to correct the date of filing of the complaint as "21.1.97." Though the opposite party in Misc. Case No. 1786/99 (a petition to vacate the stay order) had also mentioned 20.1.97 as the date of filling of the complaint but on 22.12.99, learned Counsel for the opposite party conceded to the prayer made in the Misc. Case No. 2307/ 99. The Certified copy of the order -sheet dated 21.1.97 also supports the contention of the Petitioner. In view of that the date of filing of the complaint for all intent and purposes is to be read as 21.1.97. Relevant averment in the application under Section 482 stands corrected accordingly and that misc. case is allowed.

(3.) WHILE advancing the counter argument, learned Counsel for the opposite party argued that the assertion made regarding payment and non -encashability of the cheques, as stated by the Petitioner, is not correct. Since that is a disputed question of fact, this Court should not interfere with the cognizance when there exists a prima facie case from the averments made in the complaint and the statements and documents available in the case. He also argued that the complaint was filed in time and in that respect in counting the period of limitation, Petitioner has committed the mistake of not excluding the date opposite party discharged his obligation under law by sending the notice to the Petitioner in correct address (as per the agreement). Non -receipt of the notice by the Petitioner, under such circumstance does not put the Petitioner in any advantageous position.