Court No. - 64
Case :- APPLICATION U/S 482 No. - 16415 of 2019 Applicant :- Dewakar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Suresh Pratap Singh Counsel for Opposite Party :- G.A.
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the applicant and learned AGA for the state and perused the record of this application.
This application under Section 482 Cr.P.C. has been filed to quash the order dated 12.10.2018 passed by Judicial Magistrate Ist, court no.12, Basti in complaint case no.280 of 2018, Police Station Kalwari, District Basti.
Contention of learned counsel for the applicant is on manifold;
First, the complaint is not maintainable and it is barred by the express provisions of Section 142 of the Negotiable Instrument Act, 1881 as the notice sent was much beyond time and so the presentation of the complaint is beyond the stipulated time.
Secondly, the point of liability and debt incurred by the present applicant still remains undisposed off and before deciding this particular aspect the court below cannot proceed against the applicant.
Thirdly, in this case the first dishonour of cheque came to the knowledge of the applicant in the month of January, 2018 itself but the complaint was filed on 10.05.2018 which shows that the complaint filed is beyond time.
Learned counsel for the applicant has placed reliance in the matter reported as (2017) Law Suits (SC) 1240 in the matter of B. Sunitha vs. State of Telengana and another and 2015 Law Suit (SC) 458, Omniplast Pvt. Ltd. vs. Standard Chartered Bank and ors. in support of his contention.
Retorting to the aforesaid argument, learned A.G.A. for the State submits that in this case the last presentation of cheque was within the validity period of April, 2018 and the maintainability starts from that specific date (17.04.2018) because as per law laid down by the Apex Court, the cheque can be presented for encashment before the concerned bank. if the period of validity expires or exceeds, there is no bar and to say that the first knowledge of dishonour of the cheque would determine the point of limitation is not stipulated under the relevant provisions of law.
Considered the rival submissions also perused the record and the impugned order dated 12.10.2018.
Contentious issue has been raised by the applicant and obviously, the point of limitation can be gone into by the court below itself because there are series of presentation of cheques on various dates during period of validity (of cheque) in question then proper calculation of time of presentation is expected to be done by the court below itself whether the complaint is maintainable or not?
Contentious issue can not be scrutinized at this juncture as that would be prejudicial to the interest of justice. Insofar as the aforesaid citations of Hon'ble Apex Court are concerned then both are not helpful to the applicant for the reason that the first case mentioned involves adjudication of the point whether the cheque issued in lieu of the services offered by a lawyer to a person would be a matter covered under debt or liability, which is not the context in hand, in this case, secondly, (in the second citation) the matter involved and transacted between the parties was based on some agreement regarding export and import of certain commodity, therefore, special provisions were sought to be made applicable between the parties, that way the second citation is also not helpful for the applicant as the present context has different factual background. Therefore, no interference is warranted at this juncture by this Court.
The applicant is required to appear before the court below within a period of two weeks' from today and he may challenge the maintainability of the complaint. The court below is expected to scrutinize all the facts and pass appropriate order in accordance with law after affording opportunity of hearing to the prosecution as well.
With aforesaid observation, this application is finally disposed off.
However, the observation so made shall not touch the merit of the case.
Order Date :- 25.4.2019 Raj