Criminal Misc. No. M-15204 of 2009 1 v. Kamlesh Jindal

on 26.5.2006 through Shri R.K.Bhan, Advocate, she gave a legal notice to the petitioner, who had received the same on 27.5.2006. The reply to the legal notice was given by Shri Suresh Sharma Advocate, counsel for the petitioner on 30.5.2006 and the same was received on 31.5.2006. There is no application under Section 5 of the Limitation Act for condoning the delay in filing the complaint under Section 138 of the Negotiable Instruments Act, 1881 (for brevity the Act). After filing of the complaint by the respondent, the petitioner filed an application dated 15.11.2006 for dismissal of the complaint alleging that the cause of action arose to the complainant on 30.5.2005 when the reply to the notice was given by the petitioner to the respondent and under Section 142 of the Act the period being one month for lodging the complaint, the cause of action came to arise on 30.5.2006 whereas the complaint was filed on 11.7.2006 and thus, it is barred by limitation. The learned Sub Divisional Judicial Magistrate, Samana fell in error while deciding the said application by misinterpreting Section 138 as well as 142 of the Act. The petitioner preferred revision against the order Annexure P-1 which has also been dismissed by the learned Additional Sessions judge without assigning any cogent reason. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The learned counsel for the petitioner maintained with a good deal of force that as per allegations in the complaint notice was issued to the Criminal Misc. No. M-15204 of 2009 3 petitioner on 26.5.2006 and the reply thereto was given on 30.5.2006. As such the cause of action to file the complaint had arisen from 30.5.2006 when the reply to the legal notice was received by the counsel for the complainant. The respondent knowingly did not file the complaint within the period as prescribed under Section 138 read with Section 142 of the Act. The learned courts below while misinterpreting Section 138 read with Section 142 of the Act have dismissed the application which was moved for dismissal of the complaint. The present cheque was presented in the bank on

29.4.2006 and the same was dishonoured on 1.5.2006 meaning thereby, the complainant had one month's time for giving notice under Section 138(b) of the Act. Admittedly, the reply to the said notice was given by the petitioner on 30.5.2006. It clearly indicates that the cause of action had arisen from the date on which the reply to the notice was given. In these premises, both the courts below were not justified in dismissing the application of the petitioner seeking dismissal of the complaint. To tide over these submissions the learned counsel for the petitioner submitted that period of 30 days for lodging the complaint was to commence on expiry of statutory period of 15 days from the date of service of the notice i.e. 26.5.2006 and not from the date of receipt of the reply. I have well considered the rival contentions. Admittedly, the notice was served upon the petitioner on

26.5.2006 calling upon him to make payment of the amount mentioned in the dishonoured cheque. The reply thereto was sent on 30.5.2006. In re:Sadanandan Bhadran Vs. Madhavan Sunil Kumar 1998(4) Recent Criminal Reports(Criminal) 90 the Apex Court has held as under:- Criminal Misc. No. M-15204 of 2009 4 “Now, the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonour a fresh right- and not cause of action- accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under clause (b) of Section 138 he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires.” It can be reasonably culled out from these observations that the statutory period of one month prescribed for lodging the complaint under Section 138 ibid will start running from the day immediately following the Criminal Misc. No. M-15204 of 2009 5 day on which the period of 15 days from the date of the receipt of the notice by the drawer expires. Section 138(c) of the Act 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) xx xx xx (b) xx xx xx (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.” Section 142 of the Act runs as under:- Criminal Misc. No. M-15204 of 2009 6 “142.Cognizance of offences-- Notwithstanding anything contained in the Code of Criminal Procedure, 193(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.” Axiomatically, proviso (c) of Section 138 ibid provides that if the payment is not made within 15 days from the date of receipt of the notice, the offence shall be deemed to have been committed and the statutory period of one months shall start running from the next day. The Court cannot take any cognizance prior to the lapse of the period of 15 days under clause (c) even if there was denial of the liability earlier, as even after denying the liability to the amount, the accused can at any time change his mind within 15 days on receipt of notice, and he can make payment to avoid prosecution. It is an admitted case of the parties that the notice was Criminal Misc. No. M-15204 of 2009 7 received by the petitioner on 30.5.2006. So the period of fortnight commenced from the said date. On expiry of this period, the cause of action accrued to the respondent to lodge the complaint within one month. Thus, on reckoning it this period, it transpires that the complaint has been filed well within limitation. As a sequel of the above discussion, this petition being devoid of any merit is dismissed. (HARBANS LAL) JUDGE February 22, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No