Karnataka High Court
Kanoria Industries Ltd vs Sri M.Vasant on 22 September, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRL.A.No.315/2012 (A) C/w
CRL.A.No.316/2012 (A) And
CRL.A.No.317/2012 (A)
BETWEEN:
Kanoria Industries Ltd.,
Cement Division,
Bagalkot-587 111.
Represented by its Legal Officer,
Mr.A.R.Nidaseshi S/o Rajesa,
Aged 46 years,
Occ: Business,
Residing at Sector No.35,
Navanagar,
Bagalkot. ... Appellant
(Common in all Appeals)
[By M/s. S.B.Hebballi & Associates, Advocates]
AND :
Sri.M.Vasant,
S/o Mr.Chandayya,
Aged 47 years,
Proprietor,
M/s. Akshata Traders,
Near Bus Stand,
Uppinangady-574 241,
Mangalore. ...Respondent
(Common in all Appeals)
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These Criminal Appeal Nos.315/12, 316/12 and
317/12 are filed under Section 378(4) of the Cr.P.C.
praying to set aside the order of acquittal dated
7.12.2011 passed by the Principal Civil Judge and
JMFC., Puttur, Dakshina Kannada in C.C.No.2/2008,
C.C.No.1/2008 and C.C.No.1/2007 respectively,
acquitting the respondent/accused for the offence
punishable under Section 138 of N.I. Act.
These Criminal Appeals coming for orders on this
day, the court delivered the following:
JUDGMENT
As the parties are same in all these three appeals and as common question of law and fact arises for consideration in these appeals, they have been heard together and are being disposed of by this common judgment.
2. There has been a delay of 33 days in filing each of these appeals and applications have been filed seeking condonation of delay. For the purpose of getting myself satisfied as to whether there are reasonable grounds for issuing notice to the common respondent on the applications filed for condonation of delay, I have heard the learned counsel appearing for the appellant on the merits of the appeals. 3
3. Certain undisputed facts are, the appellant presented 3 private complaints alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") against the common respondent - accused on 24.12.1998 before the Court of JMFC at Bagalkot in respect of 3 cheques said to have been issued by the respondent which were returned unpaid when presented for encashment. In the complaints it had been alleged that upon return of the cheques unpaid, the statutory legal notices issued were served on the respondent - accused on 10.11.1998 and since he failed to pay the amount covered under the cheques within the statutory period of 15 days from the date of the receipt of the notices, complaints came to be filed on 22.12.1998. The respondent - accused filed criminal petitions before this Court under Section 482 of Cr.P.C. seeking to quash the proceedings before the Court at Bagalkot on various grounds. This Court while disposing of the criminal petitions quashed the proceedings before the Magistrate at Bagalkot with a direction to the Magistrate to return the complaints to 4 the complainant for presentation before the proper Court. There was further direction that the court before which such presentation is done will entertain the matter holding that there is limitation to entertain the matter. This Court further directed that the complainant shall appear before and take back the papers from the Bagalkot Court on or before 5.2.2003 and period of 30 days contemplated under the Act shall start running from that day after deducting the period already spent before presenting the complaints before the Court at Bagalkot. In the light of the said order, the appellant took return of the complaints from the Court at Bagalkot on 11.2.2003 and re-presented before the Court of JMFC, Puttur, Dakshina Kannada on 25.2.2003, contending that the certified copy of the order passed by this Court was made available to the appellant only on 10.2.2003, therefore, the complaints could not be taken back on or before 5.2.2003. Upon appearance of the respondent - accused, a contention was raised that the complaints re-presented before the court at Puttur on 25.2.2003 are barred by time even as 5 per the orders of this Court and in the absence of any application for condonation of delay, cognizance could not have been taken by that Court. After the evidence was let in by the complainant in each of these cases, the learned Magistrate on hearing both sides, by separate and independent but identical judgments passed in each of the cases, dismissed the complaints and acquitted the respondent - accused on the ground that the complaints were presented beyond the period of limitation and no application was filed for condonation of delay. The legality and correctness of the said order is questioned in these 3 appeals.
4. Sri.Hebballi, learned counsel for the appellant contended that as per the orders of this Court passed in the criminal petitions, the period of 30 days provided under clause (b) of Section 142 of the Act will have to be computed from 5.2.2003 if not from 11.2.2003 and on that basis, the complaints re-presented on 25.2.2003 before the Court at Puttur were within the period of limitation provided under the law.
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5. Having heard the learned counsel for the appellant and on perusal of the order passed by this Court in Criminal petitions, relevant portion of which has been extracted in the judgment under appeal, I find no force in this contention raised by the learned counsel.
6. As noticed supra, the complaints were presented before the Court of JMFC at Bagalkot on 22.12.1998. As per Section 142 of the Act, as it stood as on 22.12.1998, complaint complaining the offence punishable under Section 138 of the Act was required to be filed within one month of the date on which the cause of action arose under clause (c) of proviso to Section 138 of the Act. As per clause (c) of proviso to Section 138 of the Act, the cause of action to lodge a complaint would accrue to the drawee of the cheque upon the failure of the drawer of the cheque to pay the amount covered under the cheque within 15 days from the date of the receipt of the notice of demand made in writing by the drawee as required by clause (b) of 7 proviso to Section 138 of the Act. In other words after the receipt of the notice of demand issued by drawee of the cheque as required by clause (b) of proviso to Section 138 of the Act, the drawer would have period of 15 days to pay the amount covered under the cheque and avoid any prosecution. It is only if he fails to pay the amount so demanded within 15 days from the date of the receipt of the notice, cause of action would accrue to the drawee to present the complaint from the 16th day and it should be presented within 30 days from the date of the accrual of the cause of action. That means, it should be presented on or before 45 days from the date of the receipt of the notice. There was no power for the Court to take cognizance of a complaint, which was filed beyond the period provided under clause (b) of Section 142 of the Act till 6.2.2003. With effect from 6.2.2003, proviso to clause (b) of Section 142 of the Act was introduced by way of amendment brought under Act NO.55 of 2002 which empowered the Court to take cognizance of the complaint filed after the prescribed period, if the complainant satisfies the Court that he 8 had sufficient cause for not making a complaint within such period. This amendment brought to force on 6.2.2003 was not in the statute book as on the date of the presentation of the complaint before the court at Bagalkot on 22.12.1998. Therefore, the question as to whether the court below was justified in rejecting the complaint as time barred will have to be considered in the light of the above legal position.
7. As noticed supra, this Court, while disposing of the criminal petitions and quashing the prosecutions launched against the respondent - accused before the Court at Bagalkot, however gave an opportunity to the complainant to take back the complaints and re-present them before the proper court. While doing so, this Court also saved the period during which the matters were pending before the Court at Bagalkot, which had no territorial jurisdiction. Therefore, this Court directed the appellant / complainant to take back the complaints from the Court at Bagalkot on or before 5.2.2003 and present them before the jurisdictional 9 court. This Court held that the period of 30 days contemplated under the Act shall start running from that day after deducting the period already spent before presenting the complaint at Bagalkot. Reading of this order would indicate that the period of 30 days provided under clause (b) of Section 142 of the Act would no doubt commence from 5.2.2003. But the period already spent before presenting the complaint in the Court of JMFC at Bagalkot after the accrual of cause of action will have to be deducted and within the remaining period the complaints should have been re-presented.
8. As noticed supra, undisputedly the cause of action for the complainant to present the complaints arose on 26.11.1998 since statutory notice as required by clause (b) of proviso to Section 138 of the Act was served on the respondent on 10.11.1998 and he had 15 days time from that day to pay the amount. Admittedly, the complaints were presented on 22.12.1998. That means the complaints were presented before the court at Bagalkot on the 27th day. Therefore, as per the 10 orders of this Court, the remaining period available to the complainant for re-presentation of the complaints before the proper Court after deducting the said period by taking return of the complaints on or before 5.2.2003 was only three days. Admittedly, the appellant did not take back the return of the complaints on or before 5.2.2003 and the complaints were taken back only on 11.2.2003 and were re-presented before the Court at Puttur on 24.2.2003. Though the complainant putforth the contention that since certified copy of the orders passed by this Court were not made available to him before 5.2.2003, he could not appear before the Court at Bagalkot to take back the return of those complaints, the said contention has been rightly rejected by the learned Magistrate. Reading of the order passed by this Court makes it clear that the complainant was required to appear before the Court at Bagalkot on or before 5.2.2003 and take return of those complaints. This Court did not say that the appellant would be entitled for the period spent for obtaining certified copy of the order. Irrespective of the fact as to whether or not the 11 certified copy of the order was made available to the appellant on or before 5.2.2003, he was bound to appear before the Court at Bagalkot on 5.2.2003 and take return of those complaints. However, the complainant did not comply with the said direction. On the other hand, he took back the complaints only on 11.2.2003. Assuming for the purpose of argument that he had some excuse for not appearing before the Court at Bagalkot on or before 5.2.2003, having taken back the return of complaints on 11.2.2003, the re- presentation of the complaints ought to have been within 3 days thereafter since he had already spent 27 days out of one month available to him while presenting the complaints before the court at Bagalkot. This Court had made it clear that the period of one month contemplated under clause (b) of Section 142 of the Act would start running from 5.2.2003 and by deducting the period already spent before presentation of the complaints before the Court at Bagalkot the complaints are to be re-presented. Therefore, the complaints re- presented on 25.2.2003 before the Court at Puttur were 12 clearly barred by limitation. Assuming for the purpose of argument that the benefit of the amendment brought to Section 142 of the Act by means of proviso conferring the discretion on the court to entertain the complaint presented beyond the period prescribed under clause (b) of Section 142 of the Act could be given to the complainant, it is for the complainant to have filed necessary applications seeking condonation of delay. Reading of proviso to Section 142 of the Act makes it clear that unless the Court satisfies that the complainant had sufficient cause for not making complaint within the prescribed period, the Court could not take cognizance of the offence. The language of Section 142 of the Act is mandatory to the effect that no Court shall take cognizance of the offence punishable under Section 138 of the Act except upon a complaint, in writing, made by the payee, or as the case may be, holder in due course of cheque and the such complaint should be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. Therefore, in the absence of 13 any application as per proviso to Section 142 of the Act, the learned Magistrate at Puttur could not have taken cognizance of the offence punishable on the complaints presented beyond the period of limitation. Therefore, in my opinion, the learned Magistrate is justified in law in holding that the complaints were barred by time and cognizance of the offence alleged therein could not have been taken by the court.
9. In this view of the matter, I find no merit in the appeal. Therefore, there are no reasons for issuing notice to the respondent.
10. Accordingly, the appeals are dismissed.
SD/-
JUDGE RS/*