TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 241
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....charge of the aforementioned loan, the petitioner issued a cheque for the same amount, being cheque no. 272827 dated 30th November, 2008 drawn on ICICI Bank Ltd., Bhubaneshwar Branch, Unit No. III, Opposite Sriya Talkies, Off. Janpath, Bhubaneshwar - 751 001. 4. When the opposite party presented the cheque to his banker, the cheque was returned unpaid along with the memorandum of dishonour containing the remark "Insufficient funds". Thereafter the opposite party issued a demand notice under Section 138(b) of the NI Act dated 13th February, 2009 asking the petitioner to make payment of the aforementioned amount within fifteen days of the receipt of such letter, however, the amount allegedly remained unpaid even after the stipulated period of time and as such the opposite party had to file the complaint under Section 138 of the NI Act. 5. The Learned Chief Metropolitan Magistrate took cognizance of the said complaint vide Order dated 18.03.2009 and was pleased to transfer the said case to the Court of the Learned Metropolitan Magistrate, 9th Court at Calcutta (hereinafter referred to as "learned Trial Court') for hearing and disposal. Accordingly, Complaint Case No. C/13277 of 2009....
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....roceeding is otherwise bad in law and liable to be quashed. 14. There is no representation on behalf of the opposite party in spite of due service. 15. The petitioner has filed copies of documents in support of her contention that the total cheque amount has been paid by way of two demand drafts being DD No. 300971 dated 26.03.2009 and DD No. 112527 dated 30.03.2009. The cheque in this case is dated 30.11.2008. As stated in the petition of complaint it was dishonoured on 15.01.2009. 16. Notice was issued on 13.02.2009. 17. Thus, it is clear from the materials on record that the payment towards the petitioner's liability was not within the notice period. 18. The Hon'ble Supreme Court in Dashrathbhai Trikambhai Patel vs Hitesh Mahendrabhai Patel, in Criminal Appeal No. 1497 of 2022, on 11 October, 2022, held:- "30. In view of the discussion above, we summarise our findings below: (i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation; (ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is enca....
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....or inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them." 22. Section 202 Cr.P.C. lays down:- "202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,-- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant....
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....ation of the witnesses also on affidavit in Section 145. It becomes clear that Section 145 had been inserted in the Act, with effect from the year 2003, with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202, we hold that Section 202 (2) of the Code is inapplicable to complaints under Section 138 in respect of examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202." 25. In Sunil Todi vs The State of Gujarat, Criminal Appeal No. 1446 of 2021, on 3 December, 2021, held:- "38. Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other pr....