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2022 (11) TMI 143 - HC - Indian LawsDishonor of Cheque - applicability of Section 142 of the N.I. Act - HELD THAT - Section of the I.P.C. is not attracted in a case where subject matter of the case is arising out of N.I. Act. and this aspect of the matter is being considered by the larger Bench of the Hon'ble Supreme Court as to whether in a case which is arising under Section 138 of the N.I. Act, Section 406, 420 of the I.P.C. is attracted or not. Moreover, the case is arising under Section 138 of the N.I. Act and for that only complaint case can be entertained, which is lacking in the case in hand. It is admitted fact that the matter is of Section 138 of the N.I. Act and opposite party no. 2 cannot be allowed to be remediless and the answer to this has already been given by the Hon'ble Supreme Court in YOGENDRA PRATAP SINGH VERSUS SAVITRI PANDEY ANR. 2014 (9) TMI 1129 - SUPREME COURT . Petition allowed.
Issues:
1. Amendment in prayer portion in the petition. 2. Quashing of entire criminal proceeding including the cognizance order. 3. Interpretation of Sections 138 of the N.I. Act, and Sections 406 and 420 of the I.P.C. 4. Remedies available to opposite party no. 2. Amendment in Prayer Portion: The petitioner filed I.A. No. 8428 of 2022 seeking an amendment in the prayer portion of the petition due to the court taking cognizance during the pendency of the case. The senior counsel for opposite party no. 2 did not object to the amendment, leading to the allowance of the I.A. to avoid multiplicity of litigation. Quashing of Criminal Proceeding: The petition aimed to quash the entire criminal proceeding, including the cognizance order, related to a specific case pending in the court of the Chief Judicial Magistrate. The FIR alleged non-payment for supplied materials and a bounced cheque. The petitioner argued that only a complaint petition under Section 138 of the N.I. Act was maintainable, not invoking Sections 406 and 420 of the I.P.C. The senior counsel for opposite party no. 2 contended that the non-payment justified the lodging of the FIR and supported the court's cognizance order. The court observed that in cases under Section 138 of the N.I. Act, Sections 406 and 420 of the I.P.C. might not apply, pending clarification by the Supreme Court. Consequently, the court quashed the criminal proceeding and the cognizance order. Interpretation of Legal Sections: The court highlighted that cases under Section 138 of the N.I. Act might not attract Sections 406 and 420 of the I.P.C. and noted the ongoing consideration by a larger bench of the Supreme Court on this issue. Emphasizing that the present case arose under Section 138 of the N.I. Act, the court stressed that only a complaint case was maintainable, which was absent in the current scenario. This legal aspect influenced the decision to quash the criminal proceeding and the cognizance order. Remedies Available: The court acknowledged that the matter pertained to Section 138 of the N.I. Act and that opposite party no. 2 should not be left without a remedy. Referring to a Supreme Court judgment, the court suggested that opposite party no. 2 could file a fresh complaint case within the specified time frame and seek the benefit of the proviso if necessary. This guidance ensured that opposite party no. 2 had recourse to legal remedies as per the established legal principles. In conclusion, the High Court of Jharkhand, through a detailed analysis, allowed the petition to quash the criminal proceeding and the cognizance order, emphasizing the specific legal provisions under the N.I. Act and the I.P.C. The court's decision aimed to maintain legal clarity and provide appropriate remedies to the concerned parties in line with the prevailing legal framework and judicial interpretations.
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