{"id":66540,"date":"2008-09-24T00:00:00","date_gmt":"2008-09-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/umiya-vs-state-on-24-september-2008"},"modified":"2017-11-20T06:44:30","modified_gmt":"2017-11-20T01:14:30","slug":"umiya-vs-state-on-24-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/umiya-vs-state-on-24-september-2008","title":{"rendered":"Umiya vs State on 24 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Umiya vs State on 24 September, 2008<\/div>\n
Author: M.R. Shah,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/1525120\/2007\t 14\/ 14\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nMISC. APPLICATION No. 15251 of 2007\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE M.R. SHAH\n \n \n==========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n==========================================\n\n\n \n\nUMIYA\nPIPE PRIVATE LIMITED A COMPANY INCORPORATED UNDER & 2 -\nApplicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Respondent(s)\n \n\n==========================================\nAppearance : \nMR\nRS SANJANWALA for Applicant(s) : 1 - 3. \nMS\nFALGUNI PATEL, APP for Respondent(s) : 1, \nMR RC JANI for\nRespondent(s) : 2, \n==========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE M.R. SHAH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 24\/09\/2008 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
1.\tRULE.\n<\/p>\n
Ms. Falguni Patel, learned Additional Public Prosecutor, waives
\nservice of rule on behalf of respondent no. 1-State and Shri R.C.
\nJani, learned advocate waives service of rule on behalf of respondent
\nno. 2.\n<\/p>\n
2.\tWith
\nthe consent of the learned advocates appearing on behalf of the
\nrespective parties, the application is taken up for final hearing
\ntoday.\n<\/p>\n
3.\tThe
\nshort but an interesting question of law posed for consideration of
\nthis Court is  which date would be the relevant date for starting the
\nlimitation for filing the complaint under Section 138 of the
\nNegotiable Instruments Act, 1881.\n<\/p>\n
4.\tBy
\nway of this application under Section 482 of the Code of Criminal
\nProcedure, the applicants-original accused have prayed for an
\nappropriate order to quash and set aside Criminal Case No. 749\/2007
\npending in the Court of  learned Metropolitan Magistrate, Court No.
\n5, Ahmedabad filed by respondent no. 2-original complainant for the
\noffence punishable under Section 138 of the Negotiable Instruments
\nAct, 1881 as well as the order dated 09\/02\/2007 passed by the learned
\ntrial Court in the aforesaid Criminal Case issuing summons upon the
\napplicants for the offence punishable under Section 138 of the
\nNegotiable Instruments Act, 1881.\n<\/p>\n
5.\tA
\ncriminal case has been filed by respondent no. 2-original complainant
\nagainst the applicants and others for the offence punishable under
\nSection 138 of the Negotiable Instruments Act in the Court of learned
\nMetropolitan Magistrate, Court No. 5, Ahmedabad alleging interalia
\nthat the cheque for an amount of Rs. 3 Crore was issued by the
\napplicants-original accused and when the said cheque was presented,
\nthe same came to be dishonoured\/returned with an endorsement
\n?Sinsufficient balance??.  It was the case on behalf of respondent
\nno. 2-original complainant that thereafter the applicants were served
\nwith the legal notice under Section 138 of the Negotiable Instruments
\nAct, 1881, and, thereafter, the applicants gave vague reply to the
\nnotice but did not make  payment, and, therefore, the aforesaid
\ncriminal case came to be instituted  against the applicants-original
\naccused for the offence under Section 138 of the Negotiable
\nInstruments Act, 1881.  The learned trial Court issued summons upon
\nthe applicants and others by impugned order dated 09\/02\/2007 for the
\noffence punishable under Section 138 of the Negotiable Instruments
\nAct, 1881. Hence,  the applicants-original accused have preferred the
\npresent Criminal Miscellaneous Application under Section 482 of the
\nCode of Criminal Procedure for quashing and setting aside the
\ncomplaint.\n<\/p>\n
6.\tShri
\nR.S. Sanjanwala, learned advocate appearing on behalf of the
\napplicants-original accused has vehemently submitted that the
\nimpugned complaint\/criminal case is beyond the period of limitation
\nas described under Section 138 read with Section 142 of the
\nNegotiable Instruments Act, 1881.  It is submitted that the cheque in
\nquestion was deposited on 09\/12\/2006 and the said cheque came to be
\ndishonoured on 11\/12\/2006 and the bank returned the said cheque with
\nan endorsement ?Sinsufficient balance?? on 12\/12\/2006.  Notice
\nunder Section 138 of the Negotiable Instruments Act, 1881 was issued
\nby respondent no. 2-original complainant upon the applicants on
\n20\/12\/2006 and the said notice was received by the respective
\napplicant on 22\/12\/2006 and the same was replied by the applicants on
\n05\/01\/2007 and was sent on 10\/01\/2007 and received by respondent no.
\n2-original complainant on 11\/01\/2007 and, thereafter, the impugned
\ncomplaint under Section 138 of the Negotiable Instruments Act, 1881
\nhas been filed before the learned trial Court on 09\/02\/2007.  It is
\nsubmitted that as per Section 138 of the Negotiable Instruments Act,
\n1881, complaint under Section 138 of the Negotiable Instruments Act,
\n1881 is maintainable where a cheque has been presented within a
\nperiod of six months from the date on which it is drawn or within the
\nperiod of its validity, whichever is earlier and the payee or the
\nholder in due course of the cheque, as the case may be, makes a
\ndemand for the payment of the said amount of money by giving a notice
\nin writing, to the drawer of the cheque, within thirty days
\nof the receipt of information by him from the bank regarding  the
\nreturn of the cheque as unpaid; and  the drawer of such cheque fails
\nto make the payment of the said amount of  money to the payee or, as
\nthe case may be, to the holder in due course of the cheque within
\nfifteen days of the receipt of the said notice.   It is
\nfurther submitted that as per Section 142 of the Negotiable
\nInstruments Act, 1881, no Court shall take cognizance of any offence
\npunishable under  Section 138 except upon a complaint, in writing,
\nmade by the payee or as the case may be the holder in due course of
\nthe cheque; and such a complaint is made within one month of the date
\non which the cause-of-action arises under Clause (c) of the proviso
\nto Section 138.   It is further submitted that respondent no.
\n2-original complainant has to make the complaint after fifteen days
\nof the receipt of the notice by the applicants-original accused.   It
\nis submitted that in the present case, notice was received by the
\napplicants on 22\/12\/2006 and, therefore,  if fifteen days time, as
\ncontemplated under Clause (c) of the Negotiable Instruments Act,
\n1881, is given, within a period of one month the respondent-original
\ncomplainant was required to make the complaint, i.e., on or before
\n06\/02\/2007.  However, in the present case, complaint has been made on
\n09\/02\/2007.  It is submitted that there is no application submitted
\nby  respondent no. 2-original complainant to condone the delay in
\nmaking the complaint beyond the period of limitation as contemplated
\nunder the proviso in sub-clause (b) of Section 142 of the Negotiable
\nInstruments Act, 1881 and, therefore, it is submitted that the
\nimpugned complaint is barred by limitation as provided under Section
\n142 of the Negotiable Instruments Act, 1881 and, therefore, the same
\ndeserves to be quashed and set aside.\n<\/p>\n
7.\tShri
\nR.C. Jani, learned advocate appearing on behalf of respondent no.
\n2-original complainant has submitted that the limitation to make the
\ncomplaint for the offence punishable under Section 138 of the
\nNegotiable Instruments Act, 1881 would start from the date of receipt
\nof the reply to the notice by the respondent-original complainant
\nunder Section 138 of the Negotiable Instruments Act, 1881, by the
\napplicants-original accused.  It is submitted that in the present
\ncase, reply sent by the applicants to the notice under Section 138 of
\nthe Negotiable Instruments Act, 1881 to the respondent-original
\ncomplainant came to be received by the respondent-original
\ncomplainant on 11\/01\/2007 and, thereafter, within a period of one
\nmonth, complaint can be made and, therefore,  it is submitted that
\nthe relevant date for considering the period of limitation to make
\nthe complaint would be the date on which the reply to the notice
\nunder Section 138 of the Negotiable Instruments Act, 1881 is received
\nby the respondent-original complainant and not after fifteen days of
\nreceipt of the notice under Section 138 of the Negotiable Instruments
\nAct, 1881 by the applicants-original accused.  Therefore, it is
\nsubmitted that considering the relevant date as  11\/01\/2007 and
\nwithin one month thereafter, the impugned complaint has been made on
\n09\/02\/2007 i.e. within  the period of limitation and, therefore, it
\nis requested to dismiss the present application.\n<\/p>\n
8.\tHeard
\nthe learned advocates appearing on behalf of the respective parties.
\nA complaint has been filed by respondent no. 2 herein against the
\napplicants-original accused  for the offence punishable under Section
\n138 of the Negotiable Instruments Act, 1881.   The cheque in question
\nwas deposited by respondent no. 2-original complainant on 09\/12\/2006
\nand the same was dishonoured by the bank on 11\/12\/2006 with an
\nendorsement ?Sinsufficient balance??.   The said cheque was
\nreturned by the bank on 12\/12\/2006.   Respondent no. 2-original
\ncomplainant issued notice upon the applicants-original accused as
\ncontemplated under Section 138 of the Negotiable Instruments Act,
\n1881 by UPC and RPAD on 20\/12\/2006.  The said notice was received by
\nthe applicants-original accused on 22\/12\/2006.  The
\napplicants-original accused replied to the said notice under Section
\n138 of the  Negotiable Instruments Act, 1881 on 10\/01\/2007 and the
\nsame was received by respondent no. 2-original complainant on
\n11\/01\/2007.  Thereafter, respondent no. 2-original complainant had
\nmade a complaint before the learned Metropolitan Magistrate, Court
\nNo. 5, Ahmedabad for the offence under Section 138 of the  Negotiable
\nInstruments Act, 1881 on 09\/02\/2007.\n<\/p>\n
9.\tThe
\nquestion, which is posed for consideration of this Court, is whether
\nthe impugned complaint made by respondent no.2-original complainant
\nagainst the applicants-original accused is within the stipulated
\ntime\/period of limitation as contemplated under Section 142 read with
\nSection 138 of the  Negotiable Instruments Act, 1881.\n<\/p>\n
10.\tIt
\nis the contention on behalf of the applicants-original accused that
\nthe complaint for the offence under Section 138 of the  Negotiable
\nInstruments Act, 1881 is required to be made by respondent no.
\n2-original complainant within one month of the date on which the
\ncause of action arises under Clause (c) of the proviso to Section
\n138, i.e., immediately, after fifteenth day of receipt of the notice
\nby applicants-original accused under Section 138 of the  Negotiable
\nInstruments Act, 1881 and, thereafter within one month.  Thus, it is
\nthe case on behalf of the applicants-original accused that in the
\npresent case, notice issued, by respondent no. 2-original complainant
\nunder Section 138 of the  Negotiable Instruments Act, 1881, was
\nreceived by the applicants-original accused on 22\/12\/2006 and giving
\nfifteen days time as contemplated under Sub-Clause (c) of the proviso
\nto Section 138, the complaint was required to be made within a period
\nof thirty days from 06\/01\/2007, i.e., on or before 06\/02\/2007 and in
\nthe present case, complaint has been made on 09\/02\/2007.\n<\/p>\n
11.\tOn
\nthe other hand, it is the contention on behalf of respondent no.
\n2-original complainant that the limitation to make the complaint
\nwould start from the date of receipt of the reply to the notice by
\nthe applicants-original accused i.e. in the present case on
\n11\/01\/2007.\n<\/p>\n
12.\tRelevant
\nprovision of the Negotiable Instruments Act, 1881 reads as under;\n<\/p>\n
138.  Dishonour of cheque for insufficiency, etc., of funds in the
\naccount.\n<\/p>\n
Where any cheque drawn by a person on an account maintained by him
\nwith a banker for payment of any amount of money to another person
\nfrom out of that account for the discharge, in whole or in part, of
\nany debt or other liability, is returned by the bank unpaid, either
\nbecause of the amount of money standing to the credit of that account
\nis insufficient to honour the cheque or that it exceeds the amount
\narranged to be paid from that account by an agreement made with that
\nbank, such person shall be deemed to have committed an offence and
\nshall, without prejudice to any other provisions of this Act, be
\npunished with imprisonment for (a term which may be extended to two
\nyears), or with fine which may extend to twice the amount of the
\ncheque, or with both:\n<\/p>\n
Provided that nothing contained in this Section shall apply unless:-\n<\/p>\n
(a)\tthe cheque has been presented to the bank within a period of six
\nmonths from the date on which it is drawn or within the period of its
\nvalidity, whichever is earlier;\n<\/p>\n
(b)\tthe payee or the holder in due course of the cheque, as the case
\nmay be, makes a demand for the payment of the said amount of money by
\ngiving a notice in writing, to the drawer of the cheque, (within
\nthirty days) of the receipt of information by him from the bank
\nregarding the return of the cheque as unpaid; and<\/p>\n
(c)\tthe drawer of such cheque fails to make the payment of the said
\namount of money to the payee or, as the case may be, to the holder in
\ndue course of the cheque, within fifteen days of the receipt of the
\nsaid notice.\n<\/p>\n
142.  Cognizance of offences:-  Notwithstanding anything
\ncontained in the Code of Criminal Procedure, 1973 (2 of 1974)-\n<\/p>\n
(a)\tno court shall take cognizance of any offence punishable under
\nSection 138 except upon a complaint, in writing, made by the payee
\nor, as the case may be, the holder in due course of the cheque;\n<\/p>\n
(b)\tsuch complaint is made within one month of the date on which the
\ncause-of-action arises under clause (c) of the proviso to Section
\n138:\n<\/p>\n
[Provided that the cognizance of a complaint may be taken by the
\nCourt after the prescribed period, if the complainant satisfies  the
\nCourt that he had sufficient cause for not making a complaint within
\nsuch period].\n<\/p>\n
(c)\tno Court inferior to that of a Metropolitan Magistrate or a
\nJudicial Magistrate of the first class shall try any offence
\npunishable under Section 138.\n<\/p>\n
13.
\n\tOn fair and conjoint reading of Section 142 read with Section 138 of
\nthe Negotiable Instruments Act, 1881, the starting point of
\nlimitation as contemplated under Sub Clause (c)  of the proviso to
\nSection 138 of the Negotiable Instruments Act, 1881 would be
\nimmediately after completion of fifteen days of receipt of the notice
\nserved under Section 138 of the Negotiable Instruments Act, 1881.
\nConsidering Section 138 of the Negotiable Instruments Act, 1881 a
\nperson is deemed to have committed an offence under Section 138 of
\nthe Negotiable Instruments Act, 1881 where any cheque drawn by a
\nperson on an account maintained by him with a banker for payment of
\nany amount of money to another person from out of that account for
\nthe discharge, in whole or in part, of any debt or other liability,
\nis returned by the bank unpaid, either because of the amount of money
\nstanding to  the credit of that account is  insufficient to honour
\nthe cheque or that  it exceeds the amount arranged to be paid from
\nthat account by an agreement  made with that bank,  provided that;\n<\/p>\n
(i)\tthe
\ncheque has been presented to the Bank within a period of six months
\nfrom the date on which it is drawn or within the period of its
\nvalidity, whichever is earlier;\n<\/p>\n
(ii)\tthe
\npayee or the holder in due course of the cheque, as the case may be,
\nmakes  a demand for the payment of the said amount of money by giving
\na notice in writing, to the drawer of the cheque within thirty
\ndays of the receipt of information by him from the bank
\nregarding the return of the cheque  as unpaid; and <\/p>\n
(iii)
\nthe drawer of such cheque fails to make the payment of the said
\namount of money to the payee or, as the case may be, to the holder in
\ndue course of the cheque, within fifteen
\ndays of the receipt of the said notice.\n<\/p>\n
14.\tThus,
\nif within fifteen days of receipt of notice demanding
\nfor payment of the amount of money as contemplated under Sub-Clause\n<\/p>\n
(b) of the proviso of Section 138, the drawer of the such cheque
\nfails to make the payment of the said amount of money to the payee,
\nwithin a period of thirty days thereafter, the
\ncomplaint is required to be made.  Therefore, the cause of action
\nunder Sub-Clause (c) of the proviso to Section 138 would arise within
\nfifteen days of the receipt of the notice and for
\nSub-Clause (b) of the proviso to Section 138 if payment is not made
\nwithin such fifteen days.  In the present case, therefore, the cause
\nof  action to make the complaint within one month would arise on
\ncompletion of 15 days after receipt of the notice by the accused i.e.
\n 22\/12\/2006.  Therefore, after completion of 15 days from 22\/12\/2006
\nwithin a period of one month thereafter the complainant was required
\nto make the complaint i.e. on or before 07\/02\/2007.  However, in the
\npresent case, the complaint has been made on 09\/02\/2007 and,
\ntherefore, the same is barred by the period of limitation as provided
\nunder Section 142 read with Section 138(c) of the Negotiable
\nInstruments Act.\n<\/p>\n
15.\tThe
\ncontention and the submission on behalf of respondent no. 2-original
\ncomplainant that the cause of action under Sub-Clause (c) of the
\nproviso to Section 138 would arise after fifteen days
\nof the reply to the notice under Section 138  by the accused i.e. in
\nthe present case on 11\/1\/2007 cannot be accepted.  If such a
\ncontention is accepted, in that case, it would render the Sub-Clause\n<\/p>\n
(c) of the proviso to Section 138  nugatory and adding something
\nwhich is not provided under Sub-Clause (c) of the proviso to Section\n<\/p>\n
138.  If such a contention is accepted, it would further extend the
\nperiod of limitation.  In a given case, the accused and\/or the drawer
\nmay even reply to the notice under Section 138 on the fourteenth day
\nand\/or on fifteenth day in that case,  the period of limitation would
\nfurther be extended for a period of 15 days.  On fair reading of
\nClause (c) of the proviso to Section 138 of the Negotiable
\nInstruments Act  within 15 days of the receipt of the notice the
\ndrawer has to make the payment, and within those 15 days, if the
\npayment is not made, cause of action to make the complaint would
\narise and,  therefore, fifteen days time is given to the drawer to
\nmake the payment, failing which, right in favour of the
\nrespondent-complainant to make the complaint would arise.\n<\/p>\n
16.\tIt
\nis true that considering the proviso to Sub-Clause (b) of Section 142
\ncognizance of the complaint may be taken by the Court after the
\naforesaid prescribed period, if the complainant satisfies the Court
\nthat he has sufficient cause for not making a  complaint within such
\nperiod but in that case the complainant has to plead in the complaint
\nto condone the delay making out a sufficient cause for not making the
\ncomplaint within such a period and if the complainant satisfies the
\nCourt that he has sufficient cause for not making the complaint
\nwithin such a period, the Court may take  cognizance of such a
\ncomplaint.  In absence of any pleading and\/or request to condone the
\ndelay without pointing out sufficient cause, benefit of such a
\nproviso can be given.   In the present case, in the complaint, there
\nis no prayer to condone the delay and\/or making out a sufficient
\ncause for not making the complaint within the prescribed period of
\nlimitation and, therefore, such a proviso as provided under Sub-
\nClause would not be helpful to respondent no. 2-original complainant.\n<\/p>\n
17.\tConsidering
\nthe above, the impugned complaint filed by  respondent no. 2 herein
\nagainst the applicant-original accused for the offence under Section
\n138 of the Negotiable Instruments Act is beyond the period of
\nlimitation as prescribed under Section 142 read with Section 138 (c)
\nof the Negotiable Instruments Act, 1881 and, therefore, the learned
\ntrial Court could not have taken cognizance of the said complaint.
\n\tUnder the circumstances, the impugned complaint and the order of the
\nlearned trial Court issuing summons in the said complaint deserves to
\nbe quashed and set aside.\n<\/p>\n
18.\tFor
\nthe reasons stated hereinabove, the application succeeds.  The
\nimpugned complaint being Criminal Case No. 749\/2007 pending in the
\nCourt of learned Metropolitan Magistrate, Court No. 5, Ahmedabad and
\nthe order dated 09\/02\/2007 passed by the learned trial court in the
\nsaid complaint are hereby quashed and set aside.  Rule is made
\nabsolute.\n<\/p>\n
\t\t\t\t\t\t\t\t(M.R.\n<\/p>\n
SHAH, J.)<\/p>\n
siji<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Umiya vs State on 24 September, 2008 Author: M.R. Shah,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-66540","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nUmiya vs State on 24 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/umiya-vs-state-on-24-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Umiya vs State on 24 September, 2008 - 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