RADHESHYAM PRADHAN Vs. ASHOK KUMAR SAHU

JUDGEMENT

(1.) Challenge has been made to the order dated 01.07.2009 taking cognizance of the offence under Section 138 of the N. I. Act in ICC Case No. 6 of 2009 by the learned Judicial Magistrate First Class, Loisingha.

(2.) The factual matrix leading to the filing of the writ petition is that on 12.11.2008 the petitioner purchased paddy worth of Rs. 7,00,000/- from the opposite party. In the transaction, the petitioner issued a cheque bearing No. 416964 dated 17.11.2008 of S.B.I, Duduka Branch in the district of Bolangir. Then the opposite party placed the cheque for collection through his banker, namely, Allahabad Bank. The Branch Manager of SBI, Duduka Branch returned the said dishonoured cheque with the remarks that there is insufficient balance in the account of the petitioner. So, the opposite party sent a notice to the petitioner to pay the said amount of Rs. 7,00,000/- within fifteen days failing which he would take shelter in the court of law. The said notice was received by the petitioner on 16.02.2009, but the petitioner denied to have any liability in response to the demand notice. Thereafter, the petitioner kept quite. However, he received another demand notice from the opposite party on 6.5.2009 again asking the petitioner to pay Rs. 7,00,000/- with in fifteen days from the date of receipt of. the said notice. Since no response was made by the petitioner, the petitioner came to know that the opposite party has initiated criminal prosecution vide ICC Case No. 6 of 2009 in the court of J.M.F.C., Loisingha. On 1.7.2009 the learned Magistrate took cognizance of the offence under Section 138 of the N.I. Act and issued process against the petitioner. Challenging the said order, the present writ application has been filed by the petitioner on various grounds.

(3.) Mr.H.S.Mishra, learned counsel for the petitioner submitted that the impugned order of taking cognizance is illegal and improper because the petitioner is not liable to pay any amount to the opposite party and there was no occasion to respond to the demand notice made by the opposite party. According to him, the opposite party has not filed any complaint within 30 days from the date of cause of action first arose. So, the order of taking cognizance of offence on the complaint filed within 30 days of receipt of the second demand notice is bad in law. He further submitted that the petitioner received the 2nd demand notice without disclosure of the first demand notice for which the opposite party is guilty of suppression of material fact to the learned trial court.