2002(1) ALL MR (JOURNAL) 22


Nemichand Swaroopchand Shaha Vs. M/S. T. H. Raibhagi Firm

Crl. Revn. Petn. No.664 of 2001

20th August, 2001

Petitioner Counsel: Mr. CHANDRASEKHAR P. PATIL
Respondent Counsel: Mr. M. MARIGOWDA

(A) Negotiable Instruments Act (1881) Ss.138, 142(a) - Cognizance of complaint under - Can be taken only on basis of complaint and not on police report. (Para 5)

(B) Negotiable Instruments Act (1881) S.138 - Penal Code (1860), Ss.415, 420 - Dishonour of cheque in regular trading transaction - No element of cheating as defined in S.415 disclosed - Case made out was a case of regular commercial transaction with no mala fides at all, and a case of dishonour of cheque issued in ordinary course of business - Procedure after dishonour cannot be thus circumscribed by resort to S.420, IPC. (Para 6)


JUDGMENT :- Sri. M. Marigowda, learned Addl. State Public Prosecutor appears for the respondent.

2. Heard on merits.

3. The petitioners are being prosecuted for an offence under Section 420, IPC at C.C.No.l32/92 on the file of the learned J.M.F.C., Ron. They are aggrieved with the impugned order by which the process is directed against them.

4. One T. H. Raibhagi, Managing Director of a partnership firm, filed a complaint before the learned J.M.F.C., Ron, under Section 200, Cr.P.C. alleging commission of an offence punishable under section 420, IPC by the petitioners herein. The learned Magistrate referred the said complaint under Section 156(3), Cr.P.C. to the jurisdictional police for investigation and report. On investigating into the same, the police have filed charge-sheet for an offence punishable under Section 420, IPC, upon which, the learned Magistrate has taken cognizance and has issued summons by the impugned order.

5. The very allegations of the complainant are these: On 29.2.1988, the petitioners purchased from the complainant-firm, sarees worth Rs.l4,195/- on credit. Out of them, sarees worth Rs.2,200/- were returned on 30.5.1988 on the ground that the said sarees were not in usage, and therefore, not saleable in the area concerned. On return of the said sarees, therefore, the petitioners were due to the complainant a sum of Rs. 11,995/-. Towards the said dues, the petitioners paid in cash Rs.500/-. Towards payment of the balance of Rs. 11,495/-, the petitioners, when demanded, gave a cheque on 6.9.1988 for Rs.5,000/-. The said cheque came to be dishonoured. Hence, the complaint.

On the face of it, the allegations even if accepted to be entirely true would attract Section 138 of the Negotiable Instruments Act, 1881 ('N.I.Act' for short). As per Clause (a) of Section 142 of the N.I.Act, no cognizance could have been taken in respect of the offence under Section 138 of the N.I. Act except upon a complaint in writing made by the payee or the holder in due course of the cheque, as the case may be. Herein, the learned magistrate has taken cognizance upon a police report under Clause (b) of sub-section (1) of Section 190, Cr.P.C. and not upon a complaint under Clause (a) of the said sub-section. Taking of such cognizance is prohibited by the above said Clause (a) of Section 142 of the N.I. Act.

6. Sri Marigowda, learned Addl. State Public Prosecutor sought to justify the impugned order by submitting that ingredients of Section 420, IPC are made out, and as such, taking of cognizance under Clause (b) of sub-section (1)of section 190, Cr.P.C. is in order. I have set out the very allegations in the complainant, and as I said earlier, even if everything that is stated therein is accepted, I am of the opinion that, no ingredients of 'cheating' within the meaning of Section 415, IPC are to be found. It is absolutely necessary for the purpose of bringing in Section 415, IPC that complainant should have been fraudulently or dishonestly induced by the petitioners to deliver the property concerned. Admittedly, both, the complainant and the petitioners, are traders, and it is in course of their regular business that the petitioners have taken sarees on credit from the complainant. The very fact that sarees worth Rs.2,200/- were returned subsequently on the ground that the said sarees were not in usage in the area, and the further fact that, a sum of Rs.500/- was paid in cash towards the dues, and the next circumstance that a cheque for Rs.5,000/- was issued towards discharge of the dues, would all indicate that there was no dishonest intention on the part of the petitioners to deceive the complainant and to dishonestly induce him to part with the sarees. On the other hand, it was essentially a regular commercial transaction with no mala fides at all, but that, it is only a case of dishonouring of a cheque issued in the ordinary course of business. A specific remedy by way of Chapter XVII of the N.I.Act having been provided for in this regard, and the cause of action being required to arise therefor only in particular circumstances, viz., on dishonouring of a cheque, demand by notice in writing being required to be made, and the person who has issued the cheque being required to be given 15 days time to pay the amount covered by the cheque, and it is on failure to so pay that cause of action would arise for filing a complaint for an offence under section 138 of the N.I. Act, same cannot be permitted to be circumscribed by resorting to a complaint alleging commission of an offence under Section 420, IPC. The offence under Section 420, IPC is therefore, not made out at all even accepting everything that has been stated by the complainant.

7. Petition is allowed. Impugned proceeding is quashed.

Petition allowed.