Kerala High Court
Kunju Viswanadhan vs Ramakrishnan Surendran on 25 March, 1998
Equivalent citations: 1998CRILJ3553
JUDGMENT K.A. Mohamed Shafi, J.
1. The complainant in C.C. No. 167/90 on the file of the Judicial First Class Magistrate's Court, Attingal is the appellant.
2. The appellant filed the complaint against the respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act. It is the case of the appellant that the re-sppndent issued a cheque for Rs. 35,000/- in repayment of the loan on 25-1-1990 and when the Cheque was presented for encashment it was dishonoured. The registered notice sent by the appellant intimating about the dishonour of the cheque and calling upon the respondent to pay the amount is, refused by the respondent. There fore the respondent has committed the offence punishable under Section 138 of the Negotiable Instruments Act.
3. The lower Court after trial by judgment dated 2-12-1991 found that the respondent is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and acquitted him.
4. Though the lower Court found that the respondent issued Ext. P1 cheque to the appellant for the discharge of the debt due from him and the cheque was dishonoured for insufficiency of funds and the registered notice issued by the appellant is refused to accept by the respondent, the Court held that the respondent is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act since the appellant failed to prove that the complaint was filed before the lower Court after the expiry of 15 days from the receipt of notice as contemplated in Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act and therefore the complaint is filed before the cause of action had arisen under Clause (c) of the proviso to Section 138 of the Act.
5. The facts that Ext. P1 cheque was issued by the respondent to the appellant for Rs. 35,000/- in discharge of the debt due from the respondent to the appellant and the cheque was dishonoured for want of sufficiency of funds when it was presented for encashment are proved and those facts are not disputed. Ext.P2 dishonour slip issued by the drawer's bank shows that the cheque was bounced on 2-5-1990. According to the appellant he knew about the dishonour of the cheque only on 8-5-1990. The appellant has issued Ext. P4 notice on 14-5-1990. Therefore, the evidence on record satisfied the requirement under proviso (b) to Section 138 of the Act that the notice in writing should be given within 15 days of the receipt of information regarding the dishonour of the cheque. It is the case of the appellant that the respondent refused to accept the registered notice and the original notice with the endorsement 'refused' by the postal authorities is produced and marked as Ext. P4. The endorsement 'refused' made by the postal authorities in Ext. P4 shows that it was refused by the respondent on 26-5-1990. The complaint is filed by the appellant before the lower Court on 2-6-1990 which was adjourned by the lower Court to 6-6-1990 for examination of the complainant under Section 200 of Cr.P.C. which was again adjourned to 16-6-1990 for examination of the complainant under Section 200 of Cr.P.C. as applied by the complainant and on 16-6-1990 the sworn statement of the appellant was recorded by the lower Court and the case was registered as C.C. 167/90 and ordered to issue summons to the respondent.
6. The respondent contended before the lower Court that since the complaint is filed by the appellant before the expiry of 15 days of the receipt of notice by the respondent as provided under proviso (c) to Section 138 of the Negotiable Instruments Act, the appellant had no cause of action to prosecute the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. The lower Court found that though the complaint was filed on 2-6-1990 cognizance of the offence was taken by the lower Court on 6-6-1990 when it was posted for examination of the appellant under Section 200 of the Cr.P.C. and therefore, the complaint filed and cognizance taken before the expiry of 15 days of the refusal of the notice by the respondent, are before the cause of action arose in this case and as such the respondent is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act.
7. The contention raised by the appellant to the effect that though the complaint was filed before the expiry of 15 days from the date of refusal of the notice by the respondent, cognizance is taken by the lower Court only on 16-6-1990 by examining the appellant under Section 200 of Cr.P.C. and therefore the complainant has got cause of action to prosecute the respondent in this case since it is not the date of filing of the complaint but the date of taking cognizance of the offence by the lower Court is material in determining the cause of action, was not accepted by the lower Court. Likewise the contention of the appellant that proviso (c) to Section 138 of the Negotiable Instruments Act stipulates 15 days' time from the date of receipt of notice by the drawer of the cheque and it has no reference to the refusal of the notice by the drawer and therefore in cases where the drawer of the cheque refuses to accept notice, cause of action under Section 138 of the Negotiable Instruments Act arises on the date of despatch of the notice also did not find favour with the lower Court. Those two contentions are vehemently urged by the counsel for the appellant before this Court.
8. As already noted Ext. P4 undelivered registered notice sent on behalf of the appellant to the respondent bears the endorsement refused by the respondent on 26-5-1990 made by the postal authorities. The fact that the registered notice sent on behalf of the appellant to the respondent is refused to accept by the respondent is not disputed. Therefore, the presumptions under Section 27 of the General Clauses Act as well as Section 114 of the Evidence Act are available in favour of the appellant in this case. Section 27 of the General Clauses Act raises a presumption of due service or proper service, if the letter sought to be served is sent properly addressed, pre-paid and posted by registered post to the addressee. Under Section 114 of the Evidence Act the Court may presume that when in a particular case a letter is sent by post pre-paid and properly addressed, the same is received by the addressee in the ordinary and common course1 of business. When the presumption of due and proper service under Section 114 of the Evidence Act and Section 27 of the General Clauses Act is drawn it also raises the presumption that the addressee can be imputed with the knowledge of the contents of the registered notice. AIR 1981 SC 1284 (1981 All LJ 504) Har Charan Singh v. Shiv Rani lays down the above principles of law. In this case since the refusal of the notice is not disputed by the respondent nor any contra evidence is adduced to rebut the presumptions available under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act, due and proper service due to the refusal of the notice as well as the imputation of knowledge of the contents of the notice against the respondent are established.
9. The further question to be considered is which is the date of receipt of notice and knowledge of the contents of the notice that can be presumed against the respondent. The contention of the appellant is that since the respondent has refused to accept the notice and till now he has not made any attempt to pay the amount due under the cheque, the date of despatch of the notice should be accepted as the date of receipt of the notice by the respondent.
10. In the decision in Madan & Co. v. Wazir Jaivir Chand AIR 1989; SC 630 wherein the Supreme Court considered the validity, of the notice issued under Sections 11 and 12 of the J & K Houses and Shops Rent Control Act to the tenant where constructive notice is imputed to the addressee, it is observed as follows (at pages 633 & 634) :
But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to choose the more reasonable, effective, equitable and practical interpretation and that would be to read the word 'served' as 'sent by post', correctly and properly addressed to the tenant, and the word 'receipt' as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by the tenant.
11. Therefore, it is clear that in cases of refusal to accept the notice by the addressee, knowledge of the notice that can be imputed on the addressee is from the date of refusal and not from the date of despatch of the notice by the sender since the more reasonable, effective, equitable and practical interpretation that can be put to the word 'receipt' is the tender of the letter by the postal peon at the address mentioned in the letter, as stated by the Supreme Court in the above decision. Therefore, the contention of the appellant that since the respondent has refused to accept the notice the date of service should be inferred as the date of despatch in this case, is not sustainable.
12. The appellant filed thecomplaint before the lower Court on 2-6-1990, though the respondent refused to accept the notice on 26-5-1990. Under the proviso (c) to Section 138 of the Negotiable Instruments Act, the cause of actiori under Section 138 of the Negotiable Instruments Act will arise only when the drawer of the cheque, fails to make payment of the arnount to the payee or the holder in due course of the cheque as the case may be, within 15 days of the receipt of the notice. In this case notice to the respondent can be imputed only on 26-5-1990, the date of refusal of the notice. Therefore, the complaint filed on 2-6-1990 is before the expiry of 15 clays of the receipt of notice by the respondent.
13. The counsel for the appellant argued that though the complaint was filed on 2-6-1990, actually the lower Court has taken cognizance of the offence only on 16-6-1990, long after the expiry of 15 days of the receipt of notice by the respondent, even if the date of receipt has to be presumed as 26-5-1990, the date of refusal to accept the notice. It is seen that though the complaint was filed on 2-6-1990, the learned Magistrate adjourned the same to 6-6-1990 for recording the statement of the complainant under Section 200 of the Cr.P.C. and on that date it was again adjourned to 16-6-1990 on the petition filed by the appellant and on 16-6-1990 the statement of the complainant was recorded and summons was ordered to be issued to the respondent. Therefore, according to the appellant, the lower Court applied its mind and took cognizance of the offence only on 16-6-1990.
14. The counsel for the appellant argued that under Section 190 (1) of the Cr.P.C. the Magistrate can take cognizance of any offence upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. He also argued that Section 200 of the Cr.P.C. mandates that a Magistrate taking cognizance of the offence on complaint should examine upon oath the complainant and the witnesses present, if any and shall record the substance of such examination in writing and issue summons or warrant as the case may be, to the accused, if he finds sufficient ground to proceed in the case. Therefore, according to him, the examination of the complainant and the witnesses, if any, present is the condition precedent for taking cognizance of an offence under Section 138 of the Negotiable Instruments Act since cognizance of the offence under Section 138 of the Act can be taken only by filing a complaint before the competent Magistrate under Section 142 (a) of the Act.
15. In the decision in Gopal Das v. State of Assam AIR 1961 SC 986 : (1961 (2) Cri LJ 39) the Supreme Court has observed as follows (at page 42 of Cri LJ):
If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156 (3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code.
16. In the decision in D. Lakshminarayana v. N. Narayana AIR 1976 SC 1672 : (1976 Cri LJ 1361) the Supreme Court has observed as follows (at page 1365 of Cri LJ):-
What is meant by 'taking cognizance of an offence' by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190 (1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190 (1) (a). If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156 (3), he cannot be said to have taken cognizance of any offence.
17. In the decision in Kishun Singh v. State of Bihar (1993) 2 SCC 16 : (1993 Cri LJ 1700) the Supreme Court has observed as follows (at page 1703 of Cri LJ):
Section 190 of the Code sets out the different ways in which a Magistrate can take cognizance of an offence, that is to say, take notice of an allegation disclosing commission of a crime with a view to setting the law in motion to bring the offender to book. Under this provision cognizance can be taken in three ways enumerated in Clauses (a), (b) and (c) of the offence alleged to have been committed. The object is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly if the police does not take action or he has reason to believe that no such action will be taken by the police. Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the Offender/Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under Sections 200/204 of the Code.
18. In the decision in A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500 : (1984 Cri LJ 647) the Supreme Court has observed as follows (at page 666 of Cri LJ):
When a private complaint is filed, the Court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 Cr.P.C. After exarnining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be exarnined, it would be open to the Court to judicially determine whether a case is made out for issuing process., When it is said that Court issues process, it means the Court has taken cognizance of the offence and has decided to initiate the proceedings and as a visible manifestation of taking cognizance, process is issued which means that the accused is called upon to appear before the Court. This may either take the form of a summons or a warrant, as the case may be. It may be that after examining the complainant and his witnesses, the Court in order to doubly assure itself may postpone the issue of process, and call upon the complainant to keep his witnesses present. The other option open to the Court is to direct investigation to be made by a police officer.
The above decision of the Supreme Court is approved and followed by three Judge Bench of the Supreme Court in Krishna Pillai v. T.A. Rajendran 1990 Supp SCC 121.
19. From the above rulings of the apex Court, it is clear that the date of filing of the complaint is not the date of taking cognizance of the offence by the Magistrate. Taking cognizance of the offence by the Court is entirely different from filing complaint before the Court. When a private complaint is filed the Magistrate takes? cognizance of the offence after examining the complainant and his witnesses present as provided under Section 200 of the Cr.P.C. and judicially determines whether a case is made out for issuing process against the accused. The mere fact that the private complaint filed was adjourned by the Magistrate to some other date to examine the' complainant under Section 200 of Cr.P.C. will not constitute taking cognizance of the offence Likewise the fact that after filing the complaint the Magistrate has taken some other proceedings such as issuance of search warrant etc., Will not constitute taking cognizance of the offence by the Magistrate.
20. On the basis of the dictum laid down by the Supreme Court in the above decisions, the counsel for the appellant argued that though in this case the complaint was filed by the appellant on 2-6-1990, before the expiry of 15 days of the refusal of the notice by the respondent on 26-5-1990, as the learned Magistrate has examined the complainant and applied his mind to take cognizance of the offence alleged against the respondent in the complaint only on 16-6-1990, the appellant has got jurisdiction to institute and prosecute the above case against the respondent under the proviso (c) to Section 138 of the Negotiable Instruments Act.
21. The above contention raised by the appellant on the basis of the dictum laid down by the Supreme Court regarding the Court taking cognizance of the offence under Section 190 of the Cr.P.C. is not sustainable in the above prosecution launched under Section 138 of the Negotiable Instruments Act. Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act stipulates that unless the drawer of the cheque fails to make the payment of the amount of money to the payee or to the holder in due course of the cheque as the case may be, within 15 days of the receipt of the notice, the provisions of Section 138 of the Negotiable Instruments Act shall not apply. The special provision of Section 138 of the Act stipulates the nature and mode of cause of action and the procedure to be followed for prosecuting for an offence punishable under Section 138 of the Negotiable Instruments Act. Section 142 (a) of the Act states that cognizance of the offence punishable under Section 138 shall be taken only upon a complaint in writing by the payee or the holder in due course of the cheque, as the case may be. The period of 15 days given to the drawer of the cheque after the receipt of notice is to enable him to pay the amount due under the cheque to the person claiming under the cheque and it is a pre-requisite or a precondition laid down in caluse (a) of the proviso to Section 138 to confer cause of action upon the payee or the holder in due course of the cheque to prosecute the drawer under Section 138 of the Act. Therefore, unless and until the 15 days after the receipt of notice by the drawer is elapsed, the payee or the holder in due course of the cheque, as the case may be, has no cause of action to file complaint under Section 138 of the Negotiable Instruments Act. Therefore, expiry of the period of 15 days after the receipt of the notice by the drawer is the pre-requisite or pre-condition for filing a complaint for the offence punishable under Section 138 of the Act. Hence the law laid down by the Supreme Court regarding taking cognizance of the offence by the Court under Section 190 of the Cr.P.C. on the basis of the complaint filed before the Court, is not applicable while considering the cause of action for filing complaint under the provisions of Section 138 of the Act.
22. This view taken by me is fortified by the decision of the single Judge, of this Court in Madhavan v. Addl. Judl. First Class Magistrate (1993 (1) KLT 717) wherein it is observed as follows :
Clause (c) of the proviso to Section 138 of the Act enjoins that the drawer need make the payment only within 15 days, and failure to make the payment within 15 days being one of the conditions to maintain action under Section 138 of the Act, a complaint filed before the expiry of the said period would not be maintainable. In the context of Clause (c) of the proviso to Section 138 of the Act it is not possible to interpret Section 138 of the Act to mean that, cause of action for a complains under the said Section would arise on expiry of 15 days mentioned under Clause (c) of the proviso or a notice of refusal to pay whichever is earlier. It is clear, cause of action under Section 138 of the Act can arise only on the expiry of 15 days mentioned in proviso (c) of the said section.
A single Judge of the Punjab & Haryana High Court also has taken the very same view in the decision in Ashok Verma v. Ritesh Aero 1994 (1) KLT SN page 31, Case No. 28.
23. Considering the object and reasons for enacting Section 138 and the allied provisions in the Negotiable Instruments Act, it is clear that those provisions are intended to prevent bouncing of cheques and to sustain the credibility of commercial transactions. Therefore, the very purpose behind the enactment of Clause (c) of the proviso to Section 138 of the Act is clearly understandable that before instituting criminal prosecution against the drawer of the cheque he should be given 15 days time to pay the amount after intimating about the dishonour of the cheque. Therefore, the contention of the appellant that a complaint can be filed the moment the drawer of the cheque refuses to accept the notice sent by the drawee or the holder in due course of the cheque as the case may be, intimating about the dishonour of the cheque and demanding payment of the amount, will defeat the very object and purpose of the enactment of Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act since the date of refusal has to be construed as the date of receipt of the notice under the proviso (c) to Section 138 of the Act. Therefore, the complaint in this case being filed before the expiry of 15 days of the receipt of notice under the proviso (c) to Section 138 of the Act the appellant had no cause of action to file the complaint against the respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, the lower Court is fully justified in finding that the complaint is filed before the cause of action had arisen under Clause (c) of the. proviso to Section 138 of the Negotiable Instruments Act and no interference regarding that finding is called for in this appeal.
In view of my finding that the appellant filed the complaint before the lower Court before the cause of action under Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act had arisen, the judgment passed by the lower Court acquitting the respondent in this case is confirmed and the appeal is dismissed.