Delhi District Court
Amanjeet Singh vs Ashok Kumar on 20 April, 2011
C.C.No.5788/11 Amanjeet Singh vs Ashok Kumar 20.04.2011 ORDER
A complaint has been filed with an application for condonation of delay in filing the complaint. Subsequently, delay in sending the legal demand notice has also been found. Therefore, not only the application for condonation is being decided but also the maintainability of the complaint itself is being proposed to be decided by the present order.
Heard.
As per the complaint, the legal demand notice was dispatched on 09-11/11/2010 which was duly served on 16.11.2010 (a copy of letter received from the postal department is on record). The complaint was filed on 25.01.2011.
It is mentioned in the complaint that there is a delay of 26 days in filing the complaint.
The basic grounds taken by the complainant are as under:
Accused was assuring the complainant that given one month time he will get the Rs. 1 crore payment out of Rs 1 crore 2 lacs from Yashpal Singh Chauhan (the principal debtor for which the present accused stood surety).
On humanitarian ground and believing the accused,
inadvertently filing of complaint has been delayed.
Amanjeet Singh vs Ashok Kumar (C.C.No.5788/11) 1
Ld counsel for respondent (the proposed accused) has also been heard.
Ld counsel for respondent has contended that Section-5 Limitation Act is not applicable to the offence under section-138 NI Act and therefore delay can not be condoned. He further raised a contention that there is no provision in the NI Act which empowers a Court to condone the delay in filing the complaint.
These submissions have only been noted since the ld. counsel has relied upon these submissions. Otherwise, the contentions deserves to be summarily rejected.
It need no emphasis that wrong mentioning of provision is not vital. Even if title of the application is showing the provision as Section-5 Limitation Act, this application can be treated as having filed under proviso to Section-142(b) NI Act. This provision clearly empowers a Court to condone the delay in filing the complaint.
Therefore, contentions of the respondent are rejected.
However, the condonation application has to be decided on its own merit.
There is nothing in the grounds raised by the complainant which justify the delay in filing the complaint. There is no proof that accused was giving assurance to the complainant to wait for sometime so that he could arrange the money. Even in the complaint there is no such averments to this effect. Even complainant has not cited any witness who could establish such facts. Even complainant has not filed any affidavit supporting his averments made in the application. Complainant has not even described as to when the accused given the so called assurance to him. Complainant has not also described by which mode the so called assurance was given. The conduct of the complainant was not of a prudent man.
In such circumstances, version of the complainant does not inspire judicial confidence in the absence of anything more.
Amanjeet Singh vs Ashok Kumar (C.C.No.5788/11) 2 The application for condonation of delay can not be allowed.
However, if for the sake of argument, we assume that this application may be allowed in the interest of justice considering the fact that complainant should not be made to suffer a huge loss on technical grounds and that substantial justice should prevail the technicalities, even than complaint has to be rejected.
The maintainability of the present complaint can be also discussed vis a vis limitation for sending the legal demand notice.
Unfortunately, there can be no condonation of delay if legal demand notice has been sent beyond the prescribed period. There is no such provision for condonation of such delay unlike proviso to Section-142(b) NI Act which only relates to the filing of complaint.
Factual position:
Dishonour memo is dated 22.09.2010;
Complainant is claiming that he received the intimation of dishonour on 08.10.2010;
Legal notice was prepared on 28.10.2010;
The same was sent via courier on 09.11.2010 and via Regd. Post on 11.11.2010;
Regd. Post Notice was delivered on 16.11.2010.
Complainant has tried to establish the fact that he received the intimation from the bank on 08.10.2010 ( whereas memo is dated 22.09.2010). How could we believe a mere averment in the complaint? In a scenario where one day matters, no one can be given a liberty to choose a day of intimation if he is not ready to establish that day by cogent proof.
Amanjeet Singh vs Ashok Kumar (C.C.No.5788/11) 3 Liberty of a person can not be interfered with on a mere bald statement of the complainant.
However, lets for the sake of arguments assume that the statement of the complainant is a gospel truth.
Now what to do?
Intimation was received on 08.10.2010 and legal demand notice was sent on 11.11.2010 by regd post for which a delivery report is also available.
The notice is clearly sent beyond the prescribed period i.e. 30 days. And hence, the complaint is liable to be rejected since there is no cause of action.
However, in this case, notice was also sent via courier on 09.11.2010. Unfortunately, presumption under Section-27 General Clauses Act is not available for any act done by way of courier. Complainant has not produced any document which satisfy the requirement that the notice sent by courier was received by the accused. This notice can not help the complainant.
However, even if we assume that complainant can prove the delivery of this notice if an opportunity is given, the same can not be helpful for the complainant. Reason is obvious.
Even notice sent by courier is also beyond the prescribed period of 30 days.
How?
For the limitation period, the 30 days have to be counted from the alleged date of intimation i.e. 08.10.2010. Month of October is having 31 days. And therefore, 30th day will last on 07.11.2010. The notice by courier was sent on 09.11.2010. Clearly beyond the prescribed limit.
The complaint has to be rejected.
Amanjeet Singh vs Ashok Kumar (C.C.No.5788/11) 4 Ld. counsel than submitted that notice was prepared on 28.10.2010 and only due to the fault of the counsel it was dispatched on 09.11.2010. He contended that for the fault of the counsel, complainant should not be made to suffer. He relied upon a decision of Hon'ble High Court of Karnataka in Mallappa Sangappa Desai vs Laxmanappa Basappa Whoti decided on 20.08.1994. The case was entirely based upon different facts. The disputed question therein was that when the notice was dispatched? Hon'ble High Court left the question to be decided in the trial.
However, in the case in hand, dispatch of notice is not disputed. The complainant himself has admitted that the notice was dispatched on 09.11.2010. Now where is the question of taking into account the date 28.10.2010 which is mentioned on the legal demand notice?
Can a person be allowed to claim that he has made a printout of the legal demand notice on an earlier date? It may be noted that making of demand is an essential ingredient for completing the formalities for prosecution and not a preparation for making such demand.
If we allow such a contention to stand, every complainant can claim that though the notice was dispatched on a subsequent date beyond the period of limitation, it was however prepared on an earlier date. Such an interpretation should be absurd.
Contention of the complainant is rejected.
Facing such a situation, ld. counsel has filed an affidavit of the complainant stating therein that earlier on 03.11.2010, a legal demand notice was also sent by courier. It has been contended that this notice was well within the prescribed time.
Complainant has filed copies of two courier receipts (dated 03.11.2010 & 09.11.2010 sent to the same person.
Complainant has submitted that earlier courier receipt mentioned in the complaint was in respect of some other person. And therefore, upon the information received from the counsel, he tried Amanjeet Singh vs Ashok Kumar (C.C.No.5788/11) 5 to search the courier receipt in respect of the accused and while so searching he found two courier receipts (dated 03.11.2010 & 09.11.2010 sent to the same person i.e. the accused).
I have given my due consideration to this aspect also.
Interestingly, the courier receipts show the name of the cosigner as "Ad. H.K. Gaur" i.e. the ld. counsel for the complainant.
Complainant has not disclosed at any point that his ld. counsel had returned the courier receipts to the complainant after dispatching the legal demand notice. There is nothing to establish the fact that courier receipts for that matter other related papers if any were returned to the complainant by the ld. counsel. Needless to emphasize that it was the ld. counsel who had to make preparation for filing the complaint. In the normal course of business, it can not possibly be believed that courier receipts were returned to the complainant. No doubt, the same could have happened. But such thing should have been established. If this was the position, how the complainant was searching the courier receipts?
It was not the case of the complainant that there was only one legal notice sent to the accused i.e. via courier on 03.11.2010 and the statement about notice dated 09.11.2010 was inadvertently mentioned in the complaint since the same was relating to some other person. The complainant himself made a statement in the affidavit that legal notice was also sent to the accused via courier on 09.11.2010 for which he has filed a copy of that courier receipt.
In such circumstances, it can not be believed that statement about notice dated 09.11.2010 sent by courier was inadvertently mentioned in the complaint.
Interestingly, there was no such mention of any legal demand notice sent by courier on 03.11.2010.
It is manifestly clear that story of the complainant about earlier courier receipt is concocted.
Even otherwise, complainant has not produced any delivery report in respect of the legal demand notice sent by courier allegedly on 03.11.2010. And discussed above, presumption under Amanjeet Singh vs Ashok Kumar (C.C.No.5788/11) 6 Section-27 General Clauses Act is not available for act done by courier.
Apart from all above, complainant has not established the fact that he received the intimation about the dishonour of the cheque on 08.10.2010 whereas memo is dated 22.09.210. In such circumstances, we can not assume that limitation for sending the legal notice was to be counted from 08.10.2010. And therefore, even the date 03.11.2010 would fall beyond the prescribed period of 30 days. Needless to emphasize that contravention of this limitation period can not be condoned unlike delay in filing the complaint.
At this stage, a judgment of Hon'ble Supreme Court dealing with the limitation period for sending the notice may be discussed. In Shivakumar vs Natrajan Crl Appeal 1077/2009 decided on 15.05.2009, it has been held as under:
"10. By reason of the provisions of the Act, a legal presumption in regard to commission of a crime has been raised. The proviso appended thereto, however, states that nothing contained in the main provision would apply unless conditions specified in clauses (a), (b) and (c) thereof are complied with. Clauses (a), (b) and (c) of the proviso, therefore, lay down conditions precedent for applicability of the main provision. Section 138 of the Act being penal in nature, indisputably, warrants strict construction.
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11. We may, however, at the outset notice that both clauses (a) and (b) of the proviso appended to Section 138 of the Act employed the term "within a period". Whereas clause (a) refers to presentation of the cheque to the bank within a period of six months from the date on which it is drawn, clause (b) provides for issuance of notice "to the drawer of the cheque within thirty days of the receipt of information". The words "within thirty days of the receipt of information" are significant. Indisputably, intimation was received by the respondent from the bank on 3.12.2003. The Parliament advisedly did not use the words 'from the date of receipt of information' in Section 138 of the Act. It is also of some significance to notice that in terms of Section 9 of the General Clauses Act, 1897, whereupon reliance has been placed by the High Court, the statute is required to use the word "from" and for the purpose of including the last in a series of days or any other period of time, to use the word "to".
Amanjeet Singh vs Ashok Kumar (C.C.No.5788/11) 7 The departure made from the provisions of Section 9 of the General Clauses Act by the Parliament, therefore, deserves serious consideration.
12. Indisputably, the notice was issued on the 31st day and not within a period of thirty days from the date of receipt of intimation from the bank. If Section 9 of the General Clauses Act is not applicable, clause (b) of the proviso appended to Section 138 of the Act was required to be complied with by the respondent for the purpose of maintaining a complaint petition against the appellant.
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13. Our attention has furthermore been drawn to a decision of the Kerala High Court in K.V. Muhammed Kunhi v. P. Janardhanan [1998 Crl. L.J. 4330], wherein construing proviso (a) appended to Section 138 of the Act, a learned Single Judge held:
"...A comparative study of both the Sections in the Act and the General Clauses Act significantly indicate that the period of limitation has to be reckoned from the date on which the cheque or instrument was drawn. The words 'from' and 'to' employed in Section 9 of the General Clauses Act are evidently clear that in cases where there is an ambiguity or suspicion with reference to the date of commencement of period of limitation in any Act or special enactment, the words 'from' and 'to' employed in Section 9 of the General Clauses Act can be pressed into service.."[See also K.C. Nanu v. N. Vijayan and Anr. 2008 (1) KLJ 327] We are in agreement with the aforementioned view."
In the present case, legal notice was not sent within the prescribed period.
Result:
In the ultimate analysis, the application for condonation of delay in filing of the complaint is dismissed. Consequently, complaint has to be rejected. The present complaint is also not maintainable since it is based upon legal demand notice sent beyond the prescribed period of limitation. Cognizance of offence can not be taken in such circumstances.
Matter stands disposed of.
(RAKESH KUMAR SINGH)
MM-(Central)-01/Delhi/20.04.11
Amanjeet Singh vs Ashok Kumar (C.C.No.5788/11) 8