SAMIR GUPTA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE petitioner, above named, has preferred this petition under Section 482 of the Code of Criminal Procedure for quashment of the entire criminal prosecution arising out of C.P. Case No. 276 of 2004 including the impugned order dated 10.1.2005, whereby and whereunder, cognizance of the offence under Section 138 of the Negotiable Instrument Act, 1881 (in short N.I. Act) was taken against him, presently pending in the court of Judicial Magistrate, 1st Class, Bokaro.

(2.) THE prosecution story as contained in C.P. Case No. 276 of 2004 in brief is that the opposite party No. 2 -complainant being a business man rendered service to the company of the petitioner, 'Samteeh Infonet Ltd' and had done development work as promoter in the said company within the territory of the State of Jharkhand. The accused - petitioner, Samir Gupta was the Director whereas the accused No. 2 Alok Gupta was the Managing Director of the said company (in short S.I Ltd.). It is stated further in the complaint that the petitioner had to make payment of Rs. 9,50,000/ -(Rupees nine lakhs fifty thousand) to the complainant for the services rendered by him and for that it was stated that three cheques in the following manner were presented to him by the petitioner on 15.10.2003: Cheque No. Amount.178260 Rs. 5,00,000/ -178261 Rs. 50,000/ -178262 Rs. 4,00,000/ - drawn on Bank of India, Greater Kailash -II Branch, New Delhi. All the three cheques were account payee total to the tune of Rs. 9,50,000/ -. The complainant -opposite party No. 2 presented the aforesaid cheques for encashment in his account with Punjab National Bank, Sector -IV, B.S. City Branch, Bokaro on 27.01.2004 but the aforesaid cheques were not honoured due to 'insufficient fund' in the account of the petitioner and when it was pointed out by the complainant -opposite party No. 2 request was made to him by the petitioner to present the cheques after middle of March, 2004. It is alleged that when the complainant -opposite party No. 2 again presented the cheques for encashment, it met the same fate since could not be paid with the endorsement of drawee Bank 'in sufficient of fund'. Immediately a legal notice was served under registered cover with A/D intimating the petitioner about the dishonour of the cheques by the drawee bank. Inspite of the request and persuasion, no payment was made to the complainant -opposite party No. 2. On the other hand, in reply to the legal notice, it was stated by the petitioner that demand was false and frivolous. In this manner the complaint -opposite party No. 2 was deprived of his substantial amount at the hands of the petitioner, as alleged. It was further narrated in the complaint petition, filed on 21.7.2004 that though he was very prompt and took proper steps for realization of cheques amount for which several legal notice were sent to the petitioner in time, but on account of his sudden illness at Patna, he could not be able to move from 14.5.2004 to 20 7.2004 and hence prayer was made by filing separate petition for condonation of delay.

(3.) ON the point of law Mr. Sinha submitted that the cognizance of the offence under Section 138 of N.I Act against the petitioner is barred by law of limitation and the grounds for condonation of delay was erroneously considered by the court below without examining the veracity and trust -worthyness of the medical certificate. It was no where alleged in the complaint petition that the petitioner was in any manner incharge of the business situated at P -1/E -14, Mohan Co -operative Industrial Estate, Mathura Road, New Delhi -110044 and hence the question of proceeding against the petitioner does not arise. The complaint as well as taking cognizance therein is bad in law which hit by Clause (b) of Section 142 of the N.I. Act.