- (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. The learned Counsel appearing on behalf of the petitioners submitted that after institution of Sharaiya Hat P.S. Case No. 141 of 2005 against the petitioners, the police entered into investigation and it was found that Kishori Mandal i.e. husband of the complainant died due to asphyxia as a result of drowning and no mark of external injury was found on the person of Kishori Mandal and on the basis of which final form was submitted after investigation of case by the police exonerating the criminal liability of the petitioners. The learned Counsel submitted that it would not be out of place to mention that a counter case was also instituted giving rise to Sharaiya Hat P.S. Case No. 141 of 2005 against the witnesses of the complaint case as well as many others total 16 in number for the offence under Sections 147/148/ 149/452/325/307/427/435/379 of the Indian Penal Code for the attempts made by them to commit murder of the petitioner No. 1 Gautam Verma after attacking on hi s Cold Storage and in the same sequence they damaged Santro car and scooter parked in the premises of the Cold Storage. The petitioner No. 1 was assaulted by the unruly mob as a result of which he was referred to Mumbai for urgent operation of his knee. On the information given by the petitioner No. 1 and others, the police arrived and attempted to pacific the unruly mob and on the advice of the police, the petitioner No. 1 issued three post-dated account payee cheques of Rs. 50,000/- in the name of the daughters of the deceased Kishori Mandal and even after accepting the cheques the violent mob went on rampage of the business premises. As a matter of fact the cheques were issued under coercion and threat for the protection of life and property of the petitioner No. 1 and from being more assaulted. Therefore, the petitioner No. 2 being the partner sent a letter to the Manager of Bank not to honour the cheques as these were issued under threat and coercion. The complainant's witnesses were examined in course of the inquiry under Section 202 of Cr. P.C. and they unanimously said that the present complainant was brought about to put pressure on the petitioners to make payment but the learned S.D.J.M., Dumka took cognizance of the offence under Sections 323/504 of the Indian Penal Code as well as under Section 138 of N.I. Act against all the petitioners erroneously in absence of prima facie case and without application of judicial mind.
(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.;