KAMAKHYA MAHANTA Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) THIS criminal petition is filed by two petitioners under Section 482 of the code of Criminal Procedure, 1973 for quashing the FIR lodged against them, which is registered as Sadar P. S. Case No. 329 (12)07 under Sections 420/34, I. P. C. Though the facts pleaded are many, the case can be decided on a narrow compass. The nature of the controversy involved in this case can best be understood by reproducing, at the very outset, the contents of the FIR in extenso, which are as under :-To the Officer-in-Charge, the Sadar Police Station, shillong-1. Subject: Ejahar. Dated Shillong, the 6th December, 2007. Sir, i have the honour to hereby inform your goodself that the cheque No. 049747 dated 14-8-2007, for an amount of Rs. 4,00,000/- (Rupees four lakhs) only, of the UCO Bank, shillong, issued by the company named "s. M. Apartments Pvt. Ltd. ", of G. S. Road (Opposite IDBI Building), Guwahati-781005, under the signature and seal of its Managing director, Shri Kamakhya Mahanta and its Director, Shri Sagar Saikia, in my favour, was presented by me for encashment through my bank, i. e. the Syndicate Bank, shillong, to the drawee bank whereupon the cheque was returned along with the Memo dated 3-10-2007 under the signature of the assistant Managar of the drawee bank, namely, UCO Bank, Shillong Branch, giving the reason that the cheque could not be encashed as the amount of Rs. 4,00,000/-"exceeds arrangement". Copies of the said cheque dated 14-8-2007 and the said Memo dated 3-10-2007 are enclosed herewith. Subsequently I have given Notices under section 138 of the Negotiable Instruments act, 1881, to the said Shri Kamakhya mahanta and Shri Sagar Saikia on 9-10-2007, demanding of them to pay the said amount of Rs. 4,00,000/- within 15 days of the receipt of the Notices. The Notices dated 9-10-2007 were sent by Registered Post with a/d and the A/d Cards returned showing that the addressees had received the Notices on 22-10-2007. Now more than 15 days have lapsed since the receipt of the said Notices on 22-10-2007 by the said persons. Hence I have no option but to file this instant ejahar and to request you to initiate necessary action as per law at your earliest convenience. I shall remain ever grateful for your act of kindness. Thanking you. Yours faithfully, sd/- K. D. Nongrum mega Towers', Lummawrie, laitumkhrah, Shillong-3. "

(2.) FROM the first information report lodged by the complainant/respondent, it can hardly be disputed, nor does Mr. S. Chakraborty, the learned counsel for the respondent, dispute it in the course of hearing, that the respondent himself is quite aware of the fact that the complaint lodged by him is in respect of the offence punishable under Section 138 of the Negotiable instruments Act, 1881 ("the Act" for short)and not under Section 420, I. P. C. This is evident from the fact that notices were also issued by him to the petitioners under Section 138 of the Act. Therefore, the allegations made by him in the aforesaid FIR, even if they are taken at their face value and accepted in their entirety, can at the most be a case of dishonoring the cheque dated 14-8-2007 amounting to Rs. 4,00,000/- issued by the petitioners due to insufficiency of fund in their account, which may constitute an offence punishable under Section 138 of the Act, and not under Section 420, I. P. C. However, instead of filing a complaint case under the Act just after the expiry of the notice issued by him under proviso (b) to section 138 of the Act, the respondent, for reasons best known to him, opted to lodge the FIR before the Officer-in-Charge of Sadar police Station. The Sadar Police Station also willingly obliged the respondent and proceeded to arrest the petitioner No. 2, though he was subsequently released on bail. The petitioner No. 1 managed to obtain anticipatory bail from this Court, and was accordingly let off the hook.

(3.) THE question which falls for consideration is whether the police can register the fir lodged by the respondent and take up investigation of the case without the order of a Magistrate when the offence complained of is admittedly one punishable under Section 138 of the Act. What is the nature of the offence punishable under Section 138 of the Act? Section 138 of the Act deals with the offence concerning the dishonouring of cheque for insufficiency, etc. of funds in the bank account. Section 142 pertains to cognizance of the offence punishable under section 138, which reads thus :-"142. Cognizance of offences.- Notwithstanding anything contained in the Code of criminal Procedure, 1973 (2 of 1974),- (a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 : provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period; (c) no Court inferior to that of a Metropolitan magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. "