SHIVA KUMAR SANTUKA Vs. GOVINDA CHANDRA DAS

JUDGEMENT

(1.) This is an application under section 482 of the Code of Criminal Procedure filed by the petitioner Shiva Kumar Santuka challenging the impugned order dated 13.09.2007 passed by the learned Sub-divisional Judicial Magistrate, Sadar, Cuttack in I.C.C. Case No.737 of 2007 in taking cognizance of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as "N.I. Act").

(2.) It appears that on the complaint petition filed by the opposite party Govinda Chandra Das, the power-of-attorney holder of one Kiran J. Saha before the learned S.D.J.M., Sadar, Cuttack, I.C.C. No.737 of 2007 was registered.

(3.) It is the case of the complainant that he is the power-of-attorney holder of one Kiran J. Saha to handle the bank accounts and to receive and draw the cheques and other matters as mentioned in the power-of-attorney and he was also working as accountant under the firm of Kiran J. Saha. The family of Kiran J. Saha and the family of the petitioner were friends and both were business men families. Due to shortage of funds, the petitioner approached the complainant-opposite party for a loan of Rs.2,00,000/- (rupees two lakhs) to purchase his business materials for the Dussehra business. Accordingly, on 11.08.2006 as per the direction of Kiran J. Saha, the complaint-opposite party handed over a sum of Rs.1,00,000/- (rupees one lakh) as loan in presence of the witnesses with a condition that the petitioner shall refund the amount immediately after Dussehra Puja and Kali Puja is over. Since even after the stipulated period of time, the petitioner failed to refund the loan amount, the opposite party met him and asked him for repayment of the loan amount. After several approach, the petitioner handed over a cheque of Rs.1,00,000/- (rupees one lakh) on 30.12.2006 drawn on Urban Co-operative Bank, Tinikonia Bagicha, Cuttack. After getting the cheque, on the advice of Kiran J. Saha, the opposite party presented the said cheque with his Banker, U.T.I. Bank, Cuttack on 11.04.2007. On 27.04.2007 the complainant-opposite party received intimation from the Bank regarding dishonour of the cheque on the ground of insufficiency of fund. On the very next day, the complainant met the petitioner and told him about the dishonour of cheque. The petitioner assured the complainant to repay the amount within fifteen days but since the amount was not repaid, legal notice was sent by registered post on 21.05.2007 to the petitioner which was received by him on 24.05.2007. In spite of receipt of notice, since the petitioner did not pay the cheque amount, the complaint petition was filed on 06.07.2007.