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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.3088 OF 2007
M/s.Cotex Appellant
versus
State of Maharashtra & anr. Respondents
Mr.A.H.Ponda for appellant.
Mr.P.A.Pol, APP for the State.
CORAM : A.S.OKA, J.
DATE : 18th February 2009
JUDGEMENT :
1.
I have heard detailed submissions made by
the learned counsel appearing for the
applicant. This is an application for grant of
special leave to prefer an appeal under sub
section 4 of section 378 of the Code of
Criminal Procedure, 1973. The applicant is the
complainant in a complaint filed under section
138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as “the said Act of
1881”). By the impugned order the learned
Magistrate has acquitted the second respondent
(accused).
2. It will be necessary to refer to the facts
of the case in brief. According to the case of
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the applicant, the second respondent is the
proprietor of M/s.M.M.Knits Wears. As per the
orders placed by the second respondent, the
applicant sold and delivered cloth material to
the second respondent having total value of
Rs.14,77,717/-. Four cheques were issued by
the second respondent for payment of the price
of the goods sold. The said cheques were
dishonoured and communication of dishonour was
received by the applicant on 30th December
2005. A notice of demand was issued on 30th
December 2005.
The notice was received and was
replied by letter dated 13th January 2006. As
the demand was not complied with, the present
complaint was filed.
3. A perusal of the impugned order passed by
the learned Magistrate shows that the prior to
the dishonour of the aforesaid cheques on the
basis of which notice was issued on 30th
December 2005, the said cheques were deposited
by the applicant and were dishonoured. On the
basis of the dishonoured cheques, earlier a
communication at Exhibit-22 was issued by the
applicant. By the said communication the
second respondent was called upon to issue a
single demand draft in the sum of
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Rs.14,77,717=50 ps. which is the amount
payable under the four cheques. The said
communication at Exhibit-22 was made by E-mail.
The learned Judge held that the said
communication at Exhibit-22 was a notice of
demand as contemplated by clause (b) of proviso
to Section 138 of the said Act of 1988. The
said communication at Exhibit P-22 is dated 9th
November 2000. The learned Judge relied upon
the decision of the Apex Court in the case of
Krishna Exports and others Vs. Raju Das
([2006]1-SCC
[Cri]-350) and held that the
complaint based on the second dishonour and
second demand made on the basis of the second
dishonour cannot be entertained. Therefore, he
has passed an order of acquittal.
4. The learned counsel for the applicant
submitted that the Apex Court in the case of
Krishna Exports (supra) has followed its
earlier decision in the case of Sadanandan
Bhadran Vs. Madhavan Sunil Kumar (1998-SCC
[Cri]-1471). He submitted that the decision in
the case of Sadanandan (supra) is delivered
28th August 1998. He invited my attention to
the proviso to clause (b) of section 142 of the
said Act of 1881 inserted by amending Act No.55
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of 2002 which was brought into force from 6th
February 2003. He pointed out that prior to
the said amendment, the Court did not have
power to extend the period of limitation
provided in clause (b) of section 142 of the
said Act of 1881 and by virtue of said proviso
which was brought in force with effect from 6th
February 2003, now the Court has a power to
extend the period of limitation provided in
clause (b) of Section 142 of the said Act of
1881. He submitted that the Apex Court in the
case of
Sadanandan (supra) has held that the
complaint filed after the second dishonour was
not maintainable. He submitted that the said
view is taken only on the ground that if the
said complaint was entertained, the period of
limitation provided under section 142 will be
made otiose. He submitted that now with effect
from 6th February 2003, the Court of the
learned magistrate is empowered to extend the
period of limitation and, therefore, the law
laid down by the Apex Court in the case of
Sadanandan (supra) will have no application to
the complaints filed after 6th February 2003.
He submitted that in the present case the
objection regarding bar of limitation could not
have been entertained in view of the decision
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of Division Bench of this court in case of
State of Maharashtra vs. Vasant Shankar
Mhasane and another (1993-Cri.L.J.-1134). He,
therefore, submitted that the complaint filed
by the applicant could not have been thrown out
by the Trial Court on the basis of the law laid
down by the Apex Court in the case of
Sadanandan (supra) and Krishna Exports (supra).
He submitted that the second deposit of the
cheque was on the instructions of the 2nd
accused.
5. I have carefully considered the
submissions. As far as factual aspect is
concerned, there is no dispute that the cheques
subject matter of the complaint were
dishonoured earlier and a demand was made by
the applicant on 9th November 2000 by a
communication at Exhibit-P-22. It is also not
in dispute that the said demand is a demand
within the meaning of clause (b) of section 138
of the said Act of 1881. There is no reference
to the first dishonour and the said demand in
the complaint and the complaint is based on
subsequent dishonour of the same cheques and
notice of demand issued on 30th December 2005.
The complaint has been filed on 24th January
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2006.
6. On plain reading of section 138 of the said
Act of 1881 the cause of action for filing a
complaint arises when the drawer of the cheque
fails to make payment of the amount of money to
the payee or to the holder in due course of the
cheque within a period of fifteen days from the
date of receipt of the notice of demand under
clause (b) of section 138. The cause of action
as pleaded in the present complaint is on the
basis of
subsequent dishonour and notice of
demand dated 30th December 2005.
7. The submission of the learned counsel for
the applicant is that only as per the
instructions of the accused the cheques were
redeposited. He submitted that on the basis of
the first demand made in November 2005 a
complaint could have been filed on 24th January
2006 by extending the period of limitation by
exercising the power under the proviso to
clause (b) of section 142 of the said Act of
1881 which was brought into force on 6th
February 2003. His submission is that the law
laid down in the case of Sadanandan (supra)
will now be no longer applicable to the
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complaints filed after 6th February 2005.
8. It will be necessary to refer to what is
held by the Apex Court in the case of
Sadanandan (supra). Paragraphs 7 and 8 of the
said decision read thus :-
“7. Besides the language of Sections 138
and 142 which clearly postulates only one
cause of action, there are otherformidable impediments which negate the
concept of successive causes of action.
One of them is that for dishonour of onecheque, 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 thereceipt of the 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 offencenor can the first offence be treated as
non est so as to give the payee a rightto 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 ofan offence, which stands already
committed by him and which cannot be
committed by him again.
again
8. The other impediment to the
acceptance of the concept of successive
causes of action is that it till make the
period of limitation under clause (c) of
Section 142 otiose, for, a payee who
failed to file his complaint within one
month and thereby forfeited his right to
prosecute the drawer, can circumvent the
above limitative clause by filing a
complaint on the basis of a fresh
presentation of the cheque and its::: Downloaded on – 09/06/2013 14:21:37 :::
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of statutes, the court always presumes
that the legislature inserted very part
thereof for a purpose and the legislative
intention is that every part should haveeffect, the above conclusion cannot be
drawn for that will make the provision
for limiting the period of making thecomplaint nugatory.” (Emphasis added)
The submission of the counsel for the applicant
could have been accepted if the decision of the
Apex Court was only on the ground incorporated
in paragraph 8 of the said decision. Paragraph
8 of the said decision records that the what is
mentioned
the
therein
ig is the other impedimentway of entertaining such a complaint.
in
The
other impediment was that when the Apex Court
decided the case before it, there was no
provision under the said Act of 1881 for
extending the period of limitation. Obviously,
to the complaints filed after 6th February
2005, the law as amended will apply but the
main reason given by the Apex Court is not the
bar of limitation but it is the reason
incorporated in paragraph 7 thereof. What has
been held by the Apex Court is that sections
138 and 142 contemplate only one cause of
action. The Apex Court held that for dishonour
of one cheque there can be only one offence and
the said offence is committed by the drawer
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immediately on his failure to make payment
within fifteen days of the receipt of notice in
terms of clause (b) of proviso to section 138.
The Apex Court further observed that for
similar failure after service of fresh notice
on a 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. The Apex
Court held that the question is not of waiver
of the right
ig 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. In
paragraph 9 of the said decision the Apex Court
has reiterated that once the complainant gives
notice on the basis of first dishonour, he
forfeits the said right for in case of failure
of the drawer to pay the money within the
stipulated time after the service of second
notice after second dishonour.
9. In view of what is held by the Apex Court
in paragraph 7 in the case of Sadanandan
(supra), merely because the statutory provision
empowering the Court to extend the period of
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limitation is applicable to the present
complaint, it cannot be said that the decision
of the Apex Court will not apply.
10. In the circumstances, the learned Judge
was right in holding that the complaint could
not have been entertained. Hence, no case is
made out for grant of special leave to prefer
an appeal. The application is rejected.
11. It is made clear that the observations
made in
this order shall not be construed as
any finding on the rights and liabilities of
the parties.
(A.S.OKA, J.)
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