SHYAMDEO PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner happens to be an accused under Patna Sadar Kotwali P.S.Case No. 393 of 2006 for offences under Sections 467, 468, 471 and 420 of the Indian Penal Code as well as Section 138 of Negotiable Instruments Act. On completion of investigation charge sheet under aforesaid sections of penal law was filed. After filing of the charge -sheet the question of the trial of the petitioner/accused for the aforesaid offences was taken up before the learned Magistrate to whom the case was sent by the learned C.J.M. after taking cognizance of the offence under the aforesaid sections of penal law. Before the learned Magistrate, the petitioner filed a petition for discharge on the plea that a case for his trial for the aforesaid offence was not made out. Upon hearing and perusal of the case diary, the learned Magistrate vide his order dated 29.7.2008 rejected the prayer of the petitioner/accused for discharge and he passed an order for framing of the charge under the aforesaid sections of the penal laws..

(2.) THE prosecution case in brief was that the complainant wanted employment for his graduate wife and the petitioner/accused convinced him that he would provide employment of the complainant 'swife as "clerk -cum - cashier" in ICICI Bank and that for this purpose a security deposit of Rs. 2 lakhs would be required as employment deposit which would be refunded after the confirmation of the job. On such representation as made by the petitioner/accused, the complainant/O.P. No. 2 gave Rs. 2 lakhs to him. Further allegation is that any job in the bank was not arranged or provided and subsequently the petitioner/accused stated that some posts of teacher and teaching staff had fallen vacant under the Human Resources Department of Central Government, New Delhi and he provide job to complainant/O.P.No. 2 'swife in that department. The allegation is that the petitioner/accused also gave some fake advertisement in newspaper. It was also alleged that the petitioner/accused took several lakhs of money from several persons by making such false representation. It was also alleged that in order to covering his misdeed the petitioner/accused also get some forged appointment letters to some persons from whom he had taken money but nobody could be able to join any service or get any kind of job. It is also alleged by the complainant that when the misrepresentation and realizing money by the petitioner/accused came to the light of connected persons they pressurized him to either provide a job or return their money and that on such pressure the petitioner/accused issued four cheques dated 30.3.2006 for Rs. 25 lakhs, cheque dated 31.3.2006 for Rs. 25 lakhs, cheque dated 3.4.2006 for Rs. 25 lakhs and cheque dated 4.4.2006 for Rs. 20 lakhs all drawn upon Punjab National Bank, R.K. Revenue, Patna, to the complainant/O.P. No. 2. with a request that the cheque be encashed and the amount be disbursed in required proportion to the persons from whom he (petitioner/accused) had taken the money. The prosecution case was further that the cheque was presented to the Bank but it could not be encashed due to its having been dishonoured on the ground that there was no sufficient fund for the payment. Further case of registered notice was sent to the petitioner/accused within prescribed time as provided under Section 138(b) of the N.I.Act but notice could not be served on the petitioner/accused and it returned with the postal peon 's endorsement that the addressee i.e. petitioner/accused was not living on the address. Thus after return of the notice complaint was filed which was sent by the learned C.J.M. for institution of F.I.R. and accordingly F.I.R. was instituted and charge -sheet was submitted and after taking cognizance of the offence the case was sent to the trial court for trying the petitioner/accused for the aforesaid offences. During hearing of the revision, the learned counsel for the petitioner/accused/revisionist submitted that he does not challenge the impugned order of the learned Magistrate in so far as its directs for the framing of the charge under Sections 467,468, 471 and 420 of the Indian Penal Code but the petitioner/revisionist/accused intends to challenge only the portion of the impugned order which directs for framing of the charge under Section 138 of the N. I. Act. Thus the challenge of the impugned order is limited only to the extent of order of the learned Magistrate for framing charge under Section 138 of the N.I. Act.

(3.) LEARNED counsel for the petitioner/revisionist/accused submitted that Section 138(b) of the N.I. Act enjoins that a notice demanding payment of cheque money is served on person issuing cheque within 30 days from the date of the bank 'scommunication regarding dishonour of the cheque. It was further submitted that any such notice has not been served on the petitioner/revisionist/accused within 30 days and that, therefore, there is no ground for legal authority to prosecute the petitioner/revisionist/accused under Section 138 of the N.I. Act. In support of this submission, learned counsel for the petitioner/revisionist/accused cited the decisions in the cases of Harman Electronics Private Ltd. and Another vs. National Panasonic India Private Ltd. reported in (2009)1 SCC 720 and Central Bank of India and Another vs. Saxons Farms and Others reported in (1999)8 SCC 221 [: 2000(1) PLJR (SC) 17] wherein it has been held that unless a notice is validly served under Section 138(b) of the N.I. Act the Court does not get jurisdiction to proceed with the prosecution for the offences under Section 138(b) of the N.I. Act. The learned counsel for the petitioner/revisionist/accused also submitted that after return of the notice unserved the complainant/O.P. No. 2 could have served a second notice but he did not try to serve such notice and that, therefore, the complainant gets no authority to prosecute the petitioner/revisionist/accused for the offences under Section 138 of the N.I.Act.