- (1.) This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceedings initiated as against the petitioner including the order dated 13-5-2002 passed in Complaint Case No. 443/2002, T.R. No. 797/2003, whereby and whereunder cognizance under Section 138 of the Negotiable Instruments Act has been taken and also for quashing the order dated 5-6-2003, by which non-bailable warrant of arrest has been issued.
(2.) Facts giving rise to the filing of this application are that the opposite party No. 2 filed a complaint case bearing Complaint Case No. 443/2002 stating therein that the complainant is the sole proprietor of the firm, which is run in the name and style of Hardware and Machinery Stores. The principal office of business and showroom is situated and located at Muslim Bazar, Giridih, P.S. Giridih and the complainant is the authorized dealer of Generator of the various brand. It is further alleged that on 19-3-2001 accused persons came to the showroom of the complainant and this petitioner contacted the complainant-opposite party No. 2 for purchase of a generator set of 2.2 KVA, Vidhata brand at a price of Rs. 16,500/- only. It is further alleged that petitioner paid Rs. 4500/- to the complainant on the same day i.e. on 19-3-2001 and made a promise to pay the rest of the amount of dues of Rs. 12,000/- through two cheques in the name of the complainant against bill No. 72 dated 19-3-2001. It is further alleged that bill was duly signed by the accused No. 1 on 19-3-2001 and generator set was taken away from the showroom of the complainant on 19-3-2001. Petitioner issued two account payee cheques bearing Nos. 497934 dated 5-4-2001 for Rs. 6000/- and 497935 dated 30-4-2001 for Rs. 6000/- in the name of the firm of the complainant and both the cheques were to be drawn on SBI, Dhanbad Branch. The complainant deposited the above noted cheques in the current account of UCO Bank, Giridih Branch for collection and credit in the relevant account, but UCO Bank, Giridih, by their written Information dated 17-8-2001 and 24-8-2001 had informed and intimated the complainant that there was not sufficient fund in the relevant account of petitioner and as such, both the account payee cheques stood dishonoured and returned back. It is further alleged that complainant-opposite party No. 2 made requests several times for delivery of the amount of Rs. 12000/- but petitioner did not make payment on one pretext and other and thereafter the opposite party No. 2 issued a legal notice through his advocate under registered cover with A/D on 4-4-2002 and requested the petitioner to make payment within fifteen days from the date of receipt of the notice and stipulated period expired but no compliance of the notice was made. Both the accused persons including the petitioner with a common intention to cheat the complainant to the tune of Rs.12000/-, induced the complainant to sell and deliver the generator set and falsely represented that they would pay the dues of Rs. 12000/- through two cheques. Then the opposite party No. 2 filed a complaint case under Section 420, I.P.C. and S. 138 of the Negotiable Instruments Act. After inquiry under Section 202, Cr. P.C. cognizance under Section 138 of the Negotiable Instruments Act was taken and thereafter, vide order dated 23-7-2003, the learned Court below issued warrant of arrest non-bailable against the present petitioner.
(3.) Learned counsel appearing for the petitioner submitted that order taking cognizance is completely erroneous as it is against the mandatory provision as provided under the Negotiable Instruments Act. It was further submitted that two cheques for Rs. 6000/- each were given to the opposite party No. 2 dated 5-4-2001 and 30-4-2001 respectively. It is further submitted that, both the cheques were presented before the UCO Bank, Giridih, which were dishonoured on 17-8-2001 and 24-8-2001 respectively and information was given to the complainant by the concerned Bank. After receiving dishonoured cheques, the opposite party No. 2 sent legal and registered notice to the petitioner on 4-4-2002 and a complaint was filed on 29-4-2002 after 25 days of the legal notice. When dishonoured cheques were received by the opposite party No. 2 on 24-8-2001 then he should have given notice within fifteen days from the date of dishonour i.e. before 10-9-2001 and if the drawee fails to make the payment within next 15 days i.e. by 25-9-2001, the complaint case should have been filed within six months thereafter.;