Amishek Kumar Singh vs State Of West Bengal

Debangsu Basak, J

Petitioner seeks bail.

Learned advocate appearing for the petitioner submits that, it is alleged that the petitioner did not pay the amount involved in two dishonoured

cheques dated May 11, 2016 and May 15, 2016 valued at Rs.10,00,000/-. He draws the attention of the Court to the provisions of Sections 138, 143A

and 148 of the Negotiable Instruments Act, 1881 (Act of 1881). He submits that, the de-facto complainant did not issue any notice within thirty days

of the date of dishonour of cheques as required under the Act of 1881. At best, the de-facto complainant is entitled to compensation of 20 per cent of

the value of the two cheques. He relies upon (2011) 13 SCC 412 (Thermax Limited & Ors. Vs. K. M. Johny & Ors.) and submits that, the de-facto

complainant is seeking to circumvent the civil proceedings. The claim of the de-facto complainant is barred by limitation so far as Civil Courts are

concerned. He draws the attention of the Court to the fact that, First Information Report (FIR) was lodged on January 11, 2022 in respect of two

cheques dishonoured in 2016. He relies upon (2014) 2 SCC 1 (Lalita Kumari Vs. Government of Uttar Pradesh & Ors.) and submits that, the FIR

does not disclose commission of a cognizible offence. In any event, given the abnormal delay in initiating the criminal complaint and given the fact that

the de-facto complainant did not satisfactorily explain the reasons for the delay, a preliminary inquiry should be made. According to him, none of the

ingredients under Sections 420 and 406 of the Indian Penal Code (IPC) stands satisfied. The de-facto complainant did not lodge any complaint

contemporaneously.

Learned advocate appearing for the State submits that, FIR was lodged on January 11, 2022. He draws the attention of the Court to the contents in

the case diary. He submits that, the petitioner changed his residence and mobile phone numbers frequently. He submits that, two notices under Section

41A of the Code of Criminal Procedure (Cr.P.C.) were issued to the petitioner and that the petitioner did not respond thereto.

Learned advocate appearing for the de-facto complainant submits that, the petitioner is a friend of the de-facto complainant. After dishonour of the

cheques, the petitioner used to assure the de-facto complainant that payments would be made in due course. The de-facto complainant was made to

wait by the petitioner from lodging any police complaint or initiating any proceedings for recovery. Lastly, when the de-facto complainant found that

the petitioner changed his address and his mobile phone numbers also and after much difficulty when the de-facto complainant found out about him,

the police complaint was lodged. According to him, ingredients of Sections 420 and 406 of the IPC stands satisfied. Section 406 of the IPC is a

continuing offence.

In reply, learned advocate appearing for the petitioner submits that, the petitioner received only one 41A Cr.P.C. notice and that the petitioner could

not respond thereto as the petitioner was unwell at that material point of time.

There is a FIR alleging that the petitioner defrauded and cheated the de-facto complainant for a sum of Rs.10,00,000/-. The petitioner also changed

his residence and mobile phone number in order to avoid such payment.

The materials in the case diary discloses that, the petitioner received a sum of Rs.10,00,000/- in aggregate from the de-facto complainant through

NEFT payment, cheque payment and cash payment. It is the case of the petitioner that the petitioner issued two cheques dated May 11, 2016 and

May 15, 2016 aggregating to a sum of Rs.10,00,000/- and that those two cheques were dishonoured them. It is the case of the petitioner that in view

of the provisions of the Act of 1881 and the two authorities of the Supreme Court as cited on his behalf, the prayer for anticipatory bail should be

granted.

The two cheques are admittedly of 2016 with no notice under Section 138 of the Act of 1881 being placed on record.

In Thermax Limited (supra), the Supreme Court considered an appeal directed against the order of the Division Bench of the High Court dismissing

the writ petition filed by the Thermax Limited as being misconstrued. Noticing the fact that there were disputes with regard to the liability to pay by

Thermax Limited with such company not having any intention of not paying, in the facts of that case, the Supreme Court quashed the criminal

complaint. The Supreme Court also noted the fact that the complaint was belatedly lodged in the year 2002 in respect of disputes pertaining to the

period from 1993 to 1995. The disputes relate to purchase orders with the liability of Thermax Limited yet to be determined. In the facts of the present

case, it cannot be said that there were disputes between the private parties with regard to the quantum involved.

In Lalita Kumari (supra), the Supreme Court is of the view that where information received does not disclose cognizable offence a preliminary

inquiry may be conducted. In the facts of the present case, the police complaint lodged by the de-facto complainant against the petitioner, in substance,

cannot be said not to disclose commission of a cognizable offence. Section 406 of the IPC is a continuing offence. It cannot be said with any certitude

that there is no dishonest intention of the petitioner to deceive the de facto complainant.

In such circumstances, considering the gravity of the offence and the involvement of the petitioner therein and considering the fact that the

petitioner did not respond to the notices issued under Section 41A Cr.P.C., the requirement of the prosecution for custodial interrogation of the

petitioner cannot be ruled out.

In such circumstances, we are unable to grant anticipatory bail to the petitioner as prayed for. CRM (A) 567 of 2022 is rejected.