BISWARANJAN PATTNAIK Vs. TEEM FINANCE COMPANY LIMITED

JUDGEMENT

(1.) Accused in 1. C.C. Case No. 44 of 1977 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 dated 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. Thereafter, 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 addressee 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, Cr. P.C. though it is mentioned that the complaint petition was filed on 20-].97 but during the course of hearing, Petitioner filed Misc. Case No. 2307199 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 filing 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.) With the above backdrop of facts which has remained uncontroversial Petitioner's prayer to quash the cognizance is on three grounds, viz.;