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TMI Blog2005 (12) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... legations made by the accused can be considered by the Court of learned Magistrate only after full trial on the basis of both oral and documentary evidence to be adduced by both parties in the trial. After closure of complainant's evidence the accused would be examined u/s 313 of the Code, and thereafter, the accused would lead his evidence in support of his case and would try to rebut the presumption which is in favour of complainant u/s 139 of the NI Act. After considering evidence of both parties at the time of delivery of judgment the learned Magistrate would reflect in his judgment and order whose case is believable, acceptable and has been proved. At this stage, there is no ground at all to quash the complaint case and to discharge the accused petitioner. The order of the learned CJM taking cognizance was perfect, proper and legal and it requires no interference. The order of the learned Judicial Magistrate, Is' Court dated 14.8.03 issuing process against the petitioner also was correct, legal and proper and the said order does not require any interference. There is no ground to accept the submission of accused petitioner. It has already been indicated above that lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Case No. C-1808/03 respectively. When the petitioner moved this revisional application in this Court he obtained an interim order of stay of further proceeding of the said complaint case by an order dated 14.1.05. The de facto complainant O.P. has filed one application being C.R.A.N. No. 598/05 praying for vacating the interim order dated 14.1.05 passed by this Court. I intend to dispose of both the revisional applications being C.R.R No. 175/05 and application being C.R. A.N. No. 598/05 by this common judgment and order. 2. Mr. Subodh Ukil, learned Senior Advocate appearing for the petitioner of the revisional application submitted that the cheque in question bearing No. 143476 drawn on State Bank of India, Taratola Branch was handed over to one Kamal Prasad Basu, along with letter heads which he promised to retain only as security and he had transaction with Kamal Prasad Basu for loan. The said cheque though was signed by the petitioner was blank in respect of amount of the cheque and was undated. When the petitioner demanded return of the signed blank cheque and letter heads said Kamal Prasad Basu did not return the cheque and the blank letter heads. The petitioner, thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to his banker Corporation Bank, Rash Behari Avenue on 11.6.03. The said cheque was dishonoured on 12.6.03 with endorsement 'A/c closed' with memo dated 12.6.03. The complainant then sent demand notice under Section 138 of the NI Act to the accused petitioner by registered post with A/D and Anr. notice under certificate of posting asking him to make payment of the amount of cheque within 15 days from the date of receipt of the notice. The accused petitioner received the notice on 19.6.03 and in spite of that the accused petitioner did not pay the amount of cheque to the complainant. Thereafter, within time the complainant lodged the complaint and the said complaint is perfectly maintainable in view of the provisions of Section 138 of the NI Act. The story introduced by the accused person is not believable, and moreover, the said story cannot be considered at this stage when recording of evidence is pending. The accused petitioner at the time of his evidence or at the time of rebutting the presumption tinder Section 139 of the NI Act would be at liberty to adduce sufficient evidence to make out his case that he did not handover the cheque to complainant and that he handed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly rejected the petition filed by the petitioner for discharging him. When a complaint has been presented before a Court, the Court is to consider the contents of the complaint and the evidence transpired during examination under Section 200 of the Criminal Procedure Code (in short Code) and thereafter applying his mind he has to consider whether to issue process or not. In the present matter the learned Magistrate after going through the averments of the complaint, the statement of witnesses recorded under Section 200 of the Code and going through the papers and documents issued the process against the accused petitioner. After appearance, if the accused takes any plea or alibi, the Court is not to consider the same at the very threshold of hearing of the complaint when evidence on behalf of complainant has not been recorded. The defence plea or the defence alibi, if any, is to be considered after closure of evidence of both sides. 7. In the instant matter admittedly there was a cheque in the hand of the complainant and he was holder of the cheque and the said cheque bears the signature of petitioner. The said cheque was presented by complainant to his bank and it was dishon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing provisions of Income Tax Act. 9. After duly considering the submission made by the learned Senior Advocate for the petitioner I am unable to accept his contention. The Income Tax Act has no role to play at all in the present matter. It is a case under Section 138 of the NI Act and this provision is based on a special statute being the NI Act which deals with negotiable instruments. It is true that according to the provisions of Income Tax Act transaction at a time exceeding Rs. 20,000/-has to be made through bank either by cheque or by draft but, that itself is not a ground to quash the complaint. If any one has violated provisions of Income Tax Act, the Income Tax authorities would take penal action against such person. That a person has allegedly violated provisions of Income Tax Act is not a ground to curtail his right of taking the shelter of Court and law to enforce his remedy for violation of provisions of NI Act. At this stage, prima facie the complainant is the holder of cheque and the presumption under Section 139 of the NI Act is in his favour. The cheque when presented by the complainant to bank was dishonoured and the cheque bears the signature of the accused petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient to prove complainant's case. Legality or illegality of the contract and existence and non-existence of money lending business by the complainant is not a ground to throw the complainant's case out of Court. If it was a money suit for recovery of the money the accused petitioner would have been definitely in a better position and was entitled to the advantage of violation of Sections 23 and 24 of the Contract Act as well as non-existence of money lending business of the money lender. The accused petitioner has only remedy in the trial to rebut the presumption under Section 139 of the NI Act, and to establish his case by leading evidence when he would be asked to enter into defence after his examination under Section 313 of the Code would be over. When all the prima facie materials of offence under Section 138 of the NI Act is present sufficient to issue process this, Court would not interfere into the order of the learned Magistrate and would not quash the criminal proceeding or set aside the order of the learned Magistrate. The accused petitioner has remedy only to lead evidence by examining witnesses and producing documents to prove that there was no transaction with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revisional application as annexure P-2 and his reply as annexure P-3 . In the demand notice in paragraph 2 it was mentioned that, It is within your knowledge that the aforesaid cheque issued by you admitting your liabilities. The petition of complaint read with demand notice fulfils the essential requirements of mentioning that cheque was issued in discharge of any legal enforceable debt or liability. A mere complaint under Section 138 of the NI Act is not maintainable unless the complainant issued demand notice and after dishonour of the cheque the accused fails to make payment of the dishonoured cheque within 15 days of receipt of demand notice. In the instant case the defect was cured through the averments of demand notice and there is no ground to dismiss the complaint for failure to mention in complaint that cheque was issued for discharge of debt or liability. 16. Mr. Moitra for the complainant O.P. submitted that in the instant matter the essential requirements for fulfilling offence under Section 138 of the NI Act are there and there was sufficient materials to issue process under Section 138 of the NI Act against the petitioner. After trial on the basis of evidence the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosed in the petition of complaint read with demand notice. Here a cheque was dishonoured when presented by complainant for encashment and it was accompanied subsequently by demand notice to the accused petitioner who issued the cheque asking him to make payment of dishonoured cheque amount. In spite of receipt of demand notice the amount of the bounced cheque was not paid and naturally all the initial ingredients of initiation of a proceeding under Section 138 of the NT Act was complete. this Court in an earlier revisional application by order dated 8th July, 2004 directed the learned Magistrate to dispose of the criminal trial within 3 months from the date of communication of the order. It is evident that in spite of such direction the trial could not be completed and the accused petitioner by different methods is delaying the trial. First, after such order he filed an application for discharge and when it was rejected he moved this Court in this revisional application. Considering the entire matter and the facts and circumstances of the case and the position of law as it stands particularly in view of provisions of NI Act, I find that revisional application has no merit at al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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