PRABIN KUMAR AGARWALLA Vs. ANIL KUMAR KEDIA

JUDGEMENT

(1.) THE dispute raised in this application under Section 482, Code of Criminal Procedure is no more res integra, yet it needs an answer that is a speaking order inasmuch as the Petitioner has to be satisfied as to how the legal remedy sought for by him is not available to him at present.

(2.) PETITIONER is the accused and the opposite party is the complainant in I.C.C. No. 166 of 1997. That complaint is initiated alleging offence under Section 13B of the Negotiable Instruments Act, 1881 (in short 'N.I. Act'). The fact as stated by the complainant in his complaint is that a cheque was issued by the accused for Rs. 42,979,80. paise drawn in favour of State Bank of Mysore. Bhubaneswar Branch to discharge the liability towards the cost of medicines supplied by the complainant. That cheque was issued on 5.2.1997. It was presented on 19.2.1997 and dishonoured on 28.2.1997. Complainant contacted the accused and on latter's assurance again presented the cheque on 5.7.1997 in the Bank on 19.7.1997, he received the intimation that payment from the Bank had been stopped by the drawer. The cheque bounced in that manner on 19.7.1997. A statutory notice in registered post was sent by the complainant on 22.7.1997 and that notice was received by the accused on 29.7.1997. Thereafter, the complaint was filed on 23.8.1997 when payment was not made by the accused within a period of 15 days from the date of receipt of the registered notice.

(3.) IT be kept on record that complainant has not admitted about issuing the statutory notice on any date prior to 22.7.1997. Therefore, contention of the accused, as noted above, is on factual aspect as to whether a notice had been sent earlier as provided under Section 138 of the N.I. Act. Since that is not an admitted fact, this Court while in seisin of the case under Section 482, Code of Criminal Procedure cannot ascertain that fact by conducting a pre -trial inquiry. That plea of the accused if raised at the trial of the case shall be considered by the trial Court. A similar view has been taken by this Court in the case of Biswaranjan Pattnaik v. Teem Finance Co. Ltd., represented by its Managing Director, Bhubaneswar : (2000) 18 OCR 398.