PRAMOD KUMAR RATH Vs. ADITYA STEEL INDUSTRIES LTD

JUDGEMENT

(1.) Invoking inherent jurisdiction under Section 482 of the Criminal Procedure Code the petitioner seeks to assail the order dated 6-3-2002 passed by the learned S.D.J.M. (S), Cuttack in I(C) C.C. No. 317 of 2001 taking cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called "the Act") and issued summons to the accused.

(2.) Bereft of unnecessary details, the short facts as would be evident from the complaint petition filed by the opposite party, reveal that the complainant is the manufacturer of steel rods. The accused being a super class Contractor on regular business transactions with the complainant used to purchase steel rods from the complainant availing credit facilities starting from 21st February, 1988 till 24th May, 2000. It was alleged that the accused had issued a cheque on 30th March, 2001 for a sum of Rs. 1,37,000/- drawn on Bank of India, Sahid Nagar Branch, Bhubaneswar. The said cheque was deposited by the complainant in the bank on 30th March, 2001. On 4th April, 2001 the banker returned the said cheque assigning reason that the amount "exceeds arrangements". The complainant, it was alleged in the complaint petition, again deposited the said cheque on 19th September, 2001 at State Bank of India, Industrial Estate Branch, Cuttack. On 29-9-2001 the bank returned the cheque with the information that the amount exceeded arrangements. The bank also charged a sum of Rs. 433/- towards its service charges. The complainant within the stipulated period of 15 days issued notice in writing under Section 138(b) of the Act through his advocate calling upon the accused to pay the amount covered under the cheque. The accused received the notice sent by registered post as well as the telegram issued on 9-10-2001, but did not take any steps. Consequently the complaint petition was filed in the Court of learned S.D.J.M. (S), Cuttack. The learned Magistrate conducted enquiry required under the Criminal Procedure Code, examined the complainant on solemn affirmation, perused the complaint petition and on being satisfied that a prima facie case under Section 138 of the Act was made out took cognizance of offences and issued summons. The accused appeared and filed a petition under Section 205 of the Cr. P.C. to dispense with personal attendance. The said prayer was rejected. Thereafter, a petition was filed by the accused praying to recall the order of cognizance and to drop the proceeding. The learned Magistrate after hearing parties by a reasoned order dated 4-12-2002 rejected the petition. Being aggrieved the present Criminal Misc. Case has been filed mainly on the ground that the learned Magistrate has not properly appreciated the position of law in as much as an offence under Section 138 of the Act would construe to have been committed only when there exists a prima facie case and where it is found that the cheque which has been drawn to discharge the legally enforceable liability has bounced and not otherwise.

(3.) According to Mr. Panda, learned counsel for the petitioner, in the case at hand the amount is disputed and it is a specific case of the accused that by practising fraud and dishonestly as well as deceitfully the complainant presented the cheque in the bank though he was not required to do so. Thus the cheque having not been drawn to discharge the legally enforceable liability, the complaint petition was not maintainable. In support of such stand Mr. Panda relied upon several decisions and submitted that summoning an accused in a criminal case is a serious matter and criminal law should not be set in motion as a matter of course. According to Mr. Panda the order of learned Magistrate reflects that he applied his mind to the facts and law applicable, examined the nature of allegations, evidence both oral and documentary and on being prima facie satisfied that there were sufficient materials to reveal that the complainant would succeed in bringing home the charge took cognizance of offence. In short, according to Mr. Panda the learned Magistrate has not properly applied his mind and the order of taking cognizance having been passed mechanically, the same ought to have been recalled,