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CR.MA/1525120/2007 14/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC. APPLICATION No. 15251 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
==========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==========================================
UMIYA
PIPE PRIVATE LIMITED A COMPANY INCORPORATED UNDER & 2 -
Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
==========================================
Appearance :
MR
RS SANJANWALA for Applicant(s) : 1 - 3.
MS
FALGUNI PATEL, APP for Respondent(s) : 1,
MR RC JANI for
Respondent(s) : 2,
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 24/09/2008
ORAL
JUDGMENT
1. RULE.
Ms. Falguni Patel, learned Additional Public Prosecutor, waives
service of rule on behalf of respondent no. 1-State and Shri R.C.
Jani, learned advocate waives service of rule on behalf of respondent
no. 2.
2. With
the consent of the learned advocates appearing on behalf of the
respective parties, the application is taken up for final hearing
today.
3. The
short but an interesting question of law posed for consideration of
this Court is which date would be the relevant date for starting the
limitation for filing the complaint under Section 138 of the
Negotiable Instruments Act, 1881.
4. By
way of this application under Section 482 of the Code of Criminal
Procedure, the applicants-original accused have prayed for an
appropriate order to quash and set aside Criminal Case No. 749/2007
pending in the Court of learned Metropolitan Magistrate, Court No.
5, Ahmedabad filed by respondent no. 2-original complainant for the
offence punishable under Section 138 of the Negotiable Instruments
Act, 1881 as well as the order dated 09/02/2007 passed by the learned
trial Court in the aforesaid Criminal Case issuing summons upon the
applicants for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881.
5. A
criminal case has been filed by respondent no. 2-original complainant
against the applicants and others for the offence punishable under
Section 138 of the Negotiable Instruments Act in the Court of learned
Metropolitan Magistrate, Court No. 5, Ahmedabad alleging interalia
that the cheque for an amount of Rs. 3 Crore was issued by the
applicants-original accused and when the said cheque was presented,
the same came to be dishonoured/returned with an endorsement
?Sinsufficient balance??. It was the case on behalf of respondent
no. 2-original complainant that thereafter the applicants were served
with the legal notice under Section 138 of the Negotiable Instruments
Act, 1881, and, thereafter, the applicants gave vague reply to the
notice but did not make payment, and, therefore, the aforesaid
criminal case came to be instituted against the applicants-original
accused for the offence under Section 138 of the Negotiable
Instruments Act, 1881. The learned trial Court issued summons upon
the applicants and others by impugned order dated 09/02/2007 for the
offence punishable under Section 138 of the Negotiable Instruments
Act, 1881. Hence, the applicants-original accused have preferred the
present Criminal Miscellaneous Application under Section 482 of the
Code of Criminal Procedure for quashing and setting aside the
complaint.
6. Shri
R.S. Sanjanwala, learned advocate appearing on behalf of the
applicants-original accused has vehemently submitted that the
impugned complaint/criminal case is beyond the period of limitation
as described under Section 138 read with Section 142 of the
Negotiable Instruments Act, 1881. It is submitted that the cheque in
question was deposited on 09/12/2006 and the said cheque came to be
dishonoured on 11/12/2006 and the bank returned the said cheque with
an endorsement ?Sinsufficient balance?? on 12/12/2006. Notice
under Section 138 of the Negotiable Instruments Act, 1881 was issued
by respondent no. 2-original complainant upon the applicants on
20/12/2006 and the said notice was received by the respective
applicant on 22/12/2006 and the same was replied by the applicants on
05/01/2007 and was sent on 10/01/2007 and received by respondent no.
2-original complainant on 11/01/2007 and, thereafter, the impugned
complaint under Section 138 of the Negotiable Instruments Act, 1881
has been filed before the learned trial Court on 09/02/2007. It is
submitted that as per Section 138 of the Negotiable Instruments Act,
1881, complaint under Section 138 of the Negotiable Instruments Act,
1881 is maintainable where a cheque has been presented within a
period of six months from the date on which it is drawn or within the
period of its validity, whichever is earlier and the payee or the
holder in due course of the cheque, as the case may be, makes a
demand for the payment of the said amount of money by giving a notice
in writing, to the drawer of the cheque, within thirty days
of the receipt of information by him from the bank regarding the
return of the cheque as unpaid; and the drawer of such cheque fails
to make the payment of the said amount of money to the payee or, as
the case may be, to the holder in due course of the cheque within
fifteen days of the receipt of the said notice. It is
further submitted that as per Section 142 of the Negotiable
Instruments Act, 1881, no Court shall take cognizance of any offence
punishable under Section 138 except upon a complaint, in writing,
made by the payee or as the case may be the holder in due course of
the cheque; and such a complaint is made within one month of the date
on which the cause-of-action arises under Clause (c) of the proviso
to Section 138. It is further submitted that respondent no.
2-original complainant has to make the complaint after fifteen days
of the receipt of the notice by the applicants-original accused. It
is submitted that in the present case, notice was received by the
applicants on 22/12/2006 and, therefore, if fifteen days time, as
contemplated under Clause (c) of the Negotiable Instruments Act,
1881, is given, within a period of one month the respondent-original
complainant was required to make the complaint, i.e., on or before
06/02/2007. However, in the present case, complaint has been made on
09/02/2007. It is submitted that there is no application submitted
by respondent no. 2-original complainant to condone the delay in
making the complaint beyond the period of limitation as contemplated
under the proviso in sub-clause (b) of Section 142 of the Negotiable
Instruments Act, 1881 and, therefore, it is submitted that the
impugned complaint is barred by limitation as provided under Section
142 of the Negotiable Instruments Act, 1881 and, therefore, the same
deserves to be quashed and set aside.
7. Shri
R.C. Jani, learned advocate appearing on behalf of respondent no.
2-original complainant has submitted that the limitation to make the
complaint for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 would start from the date of receipt
of the reply to the notice by the respondent-original complainant
under Section 138 of the Negotiable Instruments Act, 1881, by the
applicants-original accused. It is submitted that in the present
case, reply sent by the applicants to the notice under Section 138 of
the Negotiable Instruments Act, 1881 to the respondent-original
complainant came to be received by the respondent-original
complainant on 11/01/2007 and, thereafter, within a period of one
month, complaint can be made and, therefore, it is submitted that
the relevant date for considering the period of limitation to make
the complaint would be the date on which the reply to the notice
under Section 138 of the Negotiable Instruments Act, 1881 is received
by the respondent-original complainant and not after fifteen days of
receipt of the notice under Section 138 of the Negotiable Instruments
Act, 1881 by the applicants-original accused. Therefore, it is
submitted that considering the relevant date as 11/01/2007 and
within one month thereafter, the impugned complaint has been made on
09/02/2007 i.e. within the period of limitation and, therefore, it
is requested to dismiss the present application.
8. Heard
the learned advocates appearing on behalf of the respective parties.
A complaint has been filed by respondent no. 2 herein against the
applicants-original accused for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881. The cheque in question
was deposited by respondent no. 2-original complainant on 09/12/2006
and the same was dishonoured by the bank on 11/12/2006 with an
endorsement ?Sinsufficient balance??. The said cheque was
returned by the bank on 12/12/2006. Respondent no. 2-original
complainant issued notice upon the applicants-original accused as
contemplated under Section 138 of the Negotiable Instruments Act,
1881 by UPC and RPAD on 20/12/2006. The said notice was received by
the applicants-original accused on 22/12/2006. The
applicants-original accused replied to the said notice under Section
138 of the Negotiable Instruments Act, 1881 on 10/01/2007 and the
same was received by respondent no. 2-original complainant on
11/01/2007. Thereafter, respondent no. 2-original complainant had
made a complaint before the learned Metropolitan Magistrate, Court
No. 5, Ahmedabad for the offence under Section 138 of the Negotiable
Instruments Act, 1881 on 09/02/2007.
9. The
question, which is posed for consideration of this Court, is whether
the impugned complaint made by respondent no.2-original complainant
against the applicants-original accused is within the stipulated
time/period of limitation as contemplated under Section 142 read with
Section 138 of the Negotiable Instruments Act, 1881.
10. It
is the contention on behalf of the applicants-original accused that
the complaint for the offence under Section 138 of the Negotiable
Instruments Act, 1881 is required to be made by respondent no.
2-original complainant within one month of the date on which the
cause of action arises under Clause (c) of the proviso to Section
138, i.e., immediately, after fifteenth day of receipt of the notice
by applicants-original accused under Section 138 of the Negotiable
Instruments Act, 1881 and, thereafter within one month. Thus, it is
the case on behalf of the applicants-original accused that in the
present case, notice issued, by respondent no. 2-original complainant
under Section 138 of the Negotiable Instruments Act, 1881, was
received by the applicants-original accused on 22/12/2006 and giving
fifteen days time as contemplated under Sub-Clause (c) of the proviso
to Section 138, the complaint was required to be made within a period
of thirty days from 06/01/2007, i.e., on or before 06/02/2007 and in
the present case, complaint has been made on 09/02/2007.
11. On
the other hand, it is the contention on behalf of respondent no.
2-original complainant that the limitation to make the complaint
would start from the date of receipt of the reply to the notice by
the applicants-original accused i.e. in the present case on
11/01/2007.
12. Relevant
provision of the Negotiable Instruments Act, 1881 reads as under;
138. Dishonour of cheque for insufficiency, etc., of funds in the
account.
Where any cheque drawn by a person on an account maintained by him
with a banker for payment of any amount of money to another person
from out of that account for the discharge, in whole or in part, of
any debt or other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of that account
is insufficient to honour the cheque or that it exceeds the amount
arranged to be paid from that account by an agreement made with that
bank, such person shall be deemed to have committed an offence and
shall, without prejudice to any other provisions of this Act, be
punished with imprisonment for (a term which may be extended to two
years), or with fine which may extend to twice the amount of the
cheque, or with both:
Provided that nothing contained in this Section shall apply unless:-
(a) the cheque has been presented to the bank within a period of six
months from the date on which it is drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case
may be, makes a demand for the payment of the said amount of money by
giving a notice in writing, to the drawer of the cheque, (within
thirty days) of the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said
amount of money to the payee or, as the case may be, to the holder in
due course of the cheque, within fifteen days of the receipt of the
said notice.
142. Cognizance of offences:- Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) no court shall take cognizance of any offence punishable under
Section 138 except upon a complaint, in writing, made by the payee
or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the
cause-of-action arises under clause (c) of the proviso to Section
138:
[Provided that the cognizance of a complaint may be taken by the
Court after the prescribed period, if the complainant satisfies the
Court that he had sufficient cause for not making a complaint within
such period].
(c) no Court inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall try any offence
punishable under Section 138.
13.
On fair and conjoint reading of Section 142 read with Section 138 of
the Negotiable Instruments Act, 1881, the starting point of
limitation as contemplated under Sub Clause (c) of the proviso to
Section 138 of the Negotiable Instruments Act, 1881 would be
immediately after completion of fifteen days of receipt of the notice
served under Section 138 of the Negotiable Instruments Act, 1881.
Considering Section 138 of the Negotiable Instruments Act, 1881 a
person is deemed to have committed an offence under Section 138 of
the Negotiable Instruments Act, 1881 where any cheque drawn by a
person on an account maintained by him with a banker for payment of
any amount of money to another person from out of that account for
the discharge, in whole or in part, of any debt or other liability,
is returned by the bank unpaid, either because of the amount of money
standing to the credit of that account is insufficient to honour
the cheque or that it exceeds the amount arranged to be paid from
that account by an agreement made with that bank, provided that;
(i) the
cheque has been presented to the Bank within a period of six months
from the date on which it is drawn or within the period of its
validity, whichever is earlier;
(ii) the
payee or the holder in due course of the cheque, as the case may be,
makes a demand for the payment of the said amount of money by giving
a notice in writing, to the drawer of the cheque within thirty
days of the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and
(iii)
the drawer of such cheque fails to make the payment of the said
amount of money to the payee or, as the case may be, to the holder in
due course of the cheque, within fifteen
days of the receipt of the said notice.
14. Thus,
if within fifteen days of receipt of notice demanding
for payment of the amount of money as contemplated under Sub-Clause
(b) of the proviso of Section 138, the drawer of the such cheque
fails to make the payment of the said amount of money to the payee,
within a period of thirty days thereafter, the
complaint is required to be made. Therefore, the cause of action
under Sub-Clause (c) of the proviso to Section 138 would arise within
fifteen days of the receipt of the notice and for
Sub-Clause (b) of the proviso to Section 138 if payment is not made
within such fifteen days. In the present case, therefore, the cause
of action to make the complaint within one month would arise on
completion of 15 days after receipt of the notice by the accused i.e.
22/12/2006. Therefore, after completion of 15 days from 22/12/2006
within a period of one month thereafter the complainant was required
to make the complaint i.e. on or before 07/02/2007. However, in the
present case, the complaint has been made on 09/02/2007 and,
therefore, the same is barred by the period of limitation as provided
under Section 142 read with Section 138(c) of the Negotiable
Instruments Act.
15. The
contention and the submission on behalf of respondent no. 2-original
complainant that the cause of action under Sub-Clause (c) of the
proviso to Section 138 would arise after fifteen days
of the reply to the notice under Section 138 by the accused i.e. in
the present case on 11/1/2007 cannot be accepted. If such a
contention is accepted, in that case, it would render the Sub-Clause
(c) of the proviso to Section 138 nugatory and adding something
which is not provided under Sub-Clause (c) of the proviso to Section
138. If such a contention is accepted, it would further extend the
period of limitation. In a given case, the accused and/or the drawer
may even reply to the notice under Section 138 on the fourteenth day
and/or on fifteenth day in that case, the period of limitation would
further be extended for a period of 15 days. On fair reading of
Clause (c) of the proviso to Section 138 of the Negotiable
Instruments Act within 15 days of the receipt of the notice the
drawer has to make the payment, and within those 15 days, if the
payment is not made, cause of action to make the complaint would
arise and, therefore, fifteen days time is given to the drawer to
make the payment, failing which, right in favour of the
respondent-complainant to make the complaint would arise.
16. It
is true that considering the proviso to Sub-Clause (b) of Section 142
cognizance of the complaint may be taken by the Court after the
aforesaid prescribed period, if the complainant satisfies the Court
that he has sufficient cause for not making a complaint within such
period but in that case the complainant has to plead in the complaint
to condone the delay making out a sufficient cause for not making the
complaint within such a period and if the complainant satisfies the
Court that he has sufficient cause for not making the complaint
within such a period, the Court may take cognizance of such a
complaint. In absence of any pleading and/or request to condone the
delay without pointing out sufficient cause, benefit of such a
proviso can be given. In the present case, in the complaint, there
is no prayer to condone the delay and/or making out a sufficient
cause for not making the complaint within the prescribed period of
limitation and, therefore, such a proviso as provided under Sub-
Clause would not be helpful to respondent no. 2-original complainant.
17. Considering
the above, the impugned complaint filed by respondent no. 2 herein
against the applicant-original accused for the offence under Section
138 of the Negotiable Instruments Act is beyond the period of
limitation as prescribed under Section 142 read with Section 138 (c)
of the Negotiable Instruments Act, 1881 and, therefore, the learned
trial Court could not have taken cognizance of the said complaint.
Under the circumstances, the impugned complaint and the order of the
learned trial Court issuing summons in the said complaint deserves to
be quashed and set aside.
18. For
the reasons stated hereinabove, the application succeeds. The
impugned complaint being Criminal Case No. 749/2007 pending in the
Court of learned Metropolitan Magistrate, Court No. 5, Ahmedabad and
the order dated 09/02/2007 passed by the learned trial court in the
said complaint are hereby quashed and set aside. Rule is made
absolute.
(M.R.
SHAH, J.)
siji
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