IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Miscellaneous No. M-44554 of 2007
Date of Decision: August 12, 2008
Mangat Ram
.....PETITIONER(S)
VERSUS
Anju Aggarwal
.....RESPONDENT(S)
. . .
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: - Mr. Manish Kumar Singla, Advocate,
for the petitioner.
Mr. Parminder P. Sharma, Advocate,
for the respondent.
. . .
AJAI LAMBA, J (Oral)
This petition has been filed under Section
482 Cr.P.C. for quashing complaint No.13 dated
16.4.2005/ 19.4.2005 (Annexure P-1) titled ‘Anju
Aggarwal vs. Mangat Ram’ and order of summoning dated
15.12.2005 (Annexure P-3) passed by the Sub Divisional
Judicial Magistrate, Sunam.
The undisputed facts are that the very
cheque that is subject matter of the complaint filed
for commission of offence under Sections 138 of the
Negotiable Instruments Act, 1881 (for short, `the Act’)
was dishonoured and notice dated 20.12.2004 was issued
Crl. Misc. No. M-44554 of 2007 [2]
as is required under Section 138(b) of the Act.
Thereafter complaint was not filed.
The cheque was presented by the respondent
again. The cheque was again dishonoured and the present
complaint has not only been filed but also entertained
and the petitioner has been summoned to stand trial.
In the complaint, the fact that the cheque
was earlier dishonoured and notice was served, has also
not been mentioned.
Learned counsel for the petitioner has
relied on M/s Prem Chand Vijay Kumar vs. Yash Pal Singh
& Another, 2005(4) SCC 417 (Para 8 and 14). Reference
has also been made to Krishna Exports vs. Raju Dass,
2006(2) RCR (Criminal) 672 (Para 3) and Sadanandan
Bhadran vs. Madhavan Sunil Kumar, 1998(4) RCR
(Criminal) 90 (Para 8).
Learned counsel appearing for the
respondent has not been able to dispute the facts as
given out by the learned counsel for the petitioner.
Learned counsel for the respondent, however, has
pointed out that on oral request having been made, the
cheque was again presented.
I have considered the arguments addressed
by the learned counsel for the parties.
The issue has been considered in the
following judgments.
In M/s Prem Chand Vijay Kumar's case
(supra), the following has been held in Para 8 and 14:-
“8. But once he gives a notice under clause (b) of Section
138, he forfeits such right in case of failure of the drawer to
Crl. Misc. No. M-44554 of 2007 [3]
pay the money within the stipulated time, he would be liable
for offence and the cause of action for filing the complaint
will arise.
xx xx xx xx xx xx xx
14,. In Sil Import, USA v. Exim Aides Silk Exporters,
Bangalore, 1999(2) RCR (Crl.) 658 (SC) : 1999(4) SCC
567, it was held that the language used in Section 142 admits
of no doubt that the magistrate is forbidden from taking
cognizance of the offence if the complaint was not filed
within one month of the date on which the cause of action
arose. Completion of the offence is the immediate forerunner
of rising of the cause of action. In other words, cause of
action would arise soon after completion of the offence and
period of limitation for filing of the application starts
simultaneously running”
In Krishna Exports’ case (supra), the
following has been held in Para 3:-
“3. This judgment which has been followed in the
subsequent decisions supports the appellant’s contention.
Faced with this difficulty the learned counsel for the
respondent submits that the first notice dated 15.2.1995 is
really not a notice contemplated by clause (c) of the proviso
to Section 138 and it cannot be construed to have given rise
to a cause of action to file the complaint. According to the
learned counsel for the respondent, the earlier notice was only
in the nature of a communication which does not spell out in
clear terms a demand to make the payment. We find it
difficult to accept the contention. On a reading of the letter
dated 15.2.1995, it is plainly clear that the respondent
required immediate payment of the amount of cheque to be
arranged failing which he threatened to take legal action in
the matter. The said letter certainly qualifies itself as a notice
within the contemplation of clause (c) of the proviso to
Section 138. We are, therefore, of the view that the learned
Magistrate should not have taken cognizance of the
complaint after the expiry of the time limit prescribed by
clause (b) of Section 142 of the Act. The proceedings taking
cognizance and issuance of the process are, therefore, liable
to be quashed.”
In Sadanandan Bhadran’s case (supra), it
has been held in Para 8:-
“”8. Besides the language of Sections 138 and 142 which
clearly postulates only one cause of action there are other
formidable impediments which negates the concept of
successive cause of action. One of them is that for dishonour
of one cheque there can be only one offence and such offence
is committed by the drawer immediately on his failure to
make the payment within fifteen days of the receipt of the
Crl. Misc. No. M-44554 of 2007 [4]notice served in accordance with clause (b) of the proviso to
Section 138. That necessarily means that for similar failure
after service of fresh notice on subsequent dishonour the
drawer cannot be liable for any offence nor can the first
offence be treated as non est so as to give the payee a right to
file a complaint treating the second offence as the first one.
At that stage it will not be a question of waiver of the right of
the payee to prosecute the drawer but of absolution of the
drawer of an offence, which stands already committed by him
and which cannot be committed by him again.”
Provisions of Section 138(b) of the Act
require the holder of the cheque to make a demand for
the payment of the cheque amount within 30 days of
receipt of information by him from bank regarding the
return of the cheque as unpaid. This was done vide
notice dated 20.12.2004. Under Section 138(c) of the
Act, in case of non payment by drawer of cheque,
complaint is required to be filed within 15 days of
receipt of notice which however was not done by the
respondent. Sections 138 to 142 of the Act, being
complete Code, in relation to dishonour of cheque, the
contention that orally a request was made, cannot be
accepted.
In view of the above, the petition is allowed.
Complaint No.13 dated 16.4.2005/ 19.4.2005
(Annexure P-1) titled ‘Anju Aggarwal vs. Mangat Ram’
and order of summoning dated 15.12.2005 (Annexure P-3)
passed by the Sub Divisional Judicial Magistrate, Sunam
are hereby quashed.
(AJAI LAMBA)
August 11, 2008 JUDGE
avin