GAUTAM VERMA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE present petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioners herein for quashment of the order impugned dated 15.12.2006 passed by the S.D.J.M., Dumka in P.C.R. No. 633 of 2005 whereby and where under the cognizance has been taken against the petitioners under Sections 323/504 of the Indian Penal Code as well as under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as N.I. Act) and also for quashment of the entire criminal prosecution against the petitioners.

(2.) THE brief fact of the case is that the opposite party No. 2, Basanti Devi brought about a complaint case vide P.C.R. No. 633 of 2005 stating inter alia that her husband was working as Mazdoor in Ishika Cold Storage owned and possessed by the petitioner No. 1 Gautam Verma and her husband was killed on 24.9.2005. Subsequently dead body of her husband was thrown in a ditch near Telia Bandh and in this connection Saraiya Hat Police Station Case No. 141 of 2005 was registered under Sections 304(A) and 201 of the Indian Penal Code against the accused persons. It was alleged in the complaint petition that the petitioner No. 1 Gautam Verma after entering into compromise with the complainant in the said police case issued three post-dated cheques of Rs. 50,000/- in the name of three minor daughters of the complainant. Two of the above cheques bearing Nos. 778096 and 778097 were returned from the bank with the endorsement "stop payment" by the drawer. A pleader's notice was given to the petitioner No. 1 Gautam Verma on 9.11.2005 under registered cover which was returned. Third cheque No. 778098 of Rs. 50,000/- was issued on 21.11.2005 which was returned by the bank management with the advice to contact drawer for which a separate notice was given under registered cover on 24.11.2005. The opposite party No. 2/complainant further alleged that when she called on the owner of Ishika Cold Storage Babudih, on 15.12.2005 all the accused persons (petitioners) variously armed with sticks assaulted and abused her. It was finally alleged that all the petitioners with deceptive intention issued the aforesaid cheque in the name of her three daughters which could not be honoured.

(3.) ADVANCING his arguments, the learned Counsel submitted that the petitioner No. 1 does not owe any liability to make payment of the compensation to the family of the deceased as Kishori Mandal did not die during course of employment under him rather cause of death in the post-mortem of Kishori Mandal was found due to his drowning and as such under the explanation of Section 138 of the N.I. Act the alleged liability is not legally enforceable and hence no case under Section 138, N.I. Act is made out against the petitioners. The learned Counsel submitted that no notice as required under the Proviso (b) of Section 138 of N.I. Act has been served upon the petitioner No. 1 nor the complainant brought the alleged notice on record claimed to have been sent to the petitioner No. 1, in course of inquiry under Section 202, Cr. PC and as such the impugned order taking cognizance of the offence under Section 138, N.I. Act is unsustainable and is fit to be quashed.