Cognizance Of Cheque Dishonour U/S 138 NI Act Can Be Taken Only Upon A Written Complaint: Jharkhand High Court Reiterates
While hearing a cheque bouncing case, the Jharkhand High Court has reaffirmed that cognizance of offences under Section 142 of the Negotiable Instruments (NI) Act does not require a report to the police nor empowers the court to direct the police to investigate the complaint.
The court further clarified that under Section 142(1)(a) of the NI Act the cognizance of an offence punishable under Section 138 for cheque dishonour can only be taken upon a written complaint.
Justice Anil Kumar Choudhary, in its order said,“Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the law is well-settled that Section 142 of the N.I. Act does not contemplate a report to the police nor authorize the Court taking cognizance to direct the police to investigate into the complaint. Section 142 (1) (a) of the N.I. Act categorically mandates that cognizance of the offence punishable under Section 138 can only be taken upon the complaint in writing”.
The court thus said that the continuation of the FIR against the petitioner in respect to the offence punishable under Section 142 NI Act is not sustainable in law.
The allegation against the petitioner was that he issued a cheque for Rs.10,82,500 to the complainant and the same was dishonoured due to insufficiency of fund in the account of the petitioner. The petitioner replied to the complainant's notice intimating that before presenting the cheque, the complainant ought to have taken the approval of the petitioner. Subsequently, the complainant filed the complaint and sought referral to the police under Section 156(3) of the Criminal Procedure Code, which was granted by the judicial magistrate. Aggrieved by the decision, the petitioner filed a petition under Section 482 of the Cr.P.C. to quash the First Information Report (FIR) lodged against them for offences under IPC Sections 467(Forgery of valuable security, will, etc), 468(Forgery for purpose of cheating), 120B (criminal conspiracy) and Section 138 of the NI Act.
The Petitioner argued that the registration of the FIR for the offence under Section 138 of the NI Act constitutes gross illegality. Additionally, the Petitioner contended that there is no allegation of forgery against them, and thus no offence under Sections 467 or 468 of the IPC can be established. The state and the complainant argued that there is no allegation against the petitioner of having committed forgery but submitted that since the petitioner has committed the offence punishable under Section 138 of the N.I. Act, hence, the F.I.R. should not be quashed.
The Court observed that in order to constitute the offences under Sections 467, 468, and 120B of the Indian Penal Code, the making of a false document is a "sine qua non" (necessary element). The Court noted that there were no allegations against the petitioner regarding the creation of any false document or forgery.
"Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner in the F.I.R. are considered to be true in their entirety still the offences punishable under Sections 467, 468/120 B of the Indian Penal Code is not made out against the petitioner," it said.
Finding that the offences were not made out the court quashed the FIR and allowed the petition.
Case Title: Prashant Kumar Singh V. The State of Jharkhand
LL Citation: 2024 LiveLaw (Jha) 176