Madhya Pradesh High Court
Yatindra Pandey vs Vijay Kumar Gupta on 22 June, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- Cr.A.No.262/2008
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Appeal No.262/2008
Yatindra Pandey
Versus
Vijay Kumar Gupta
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Shri Praveen Mishra, learned counsel for the appellant.
Shri Pawan Kumar, learned counsel for the respondent.
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ORDER
(22.06.2017) This appeal is directed against the judgment dated 13.08.2007 passed in criminal case No. 8887/2006 by the Court of Special Judicial Magistrate, Gwalior, whereby complaint filed by the present appellant against the respondent under Section 138 of Negotiable Instrument Act, 1988 (hereinafter referred as 'the act') has been dismissed on the ground of limitation and the respondent/accused has been acquitted from the aforesaid charge.
2. The facts relevant for adjudication of the case are the appellant had drawn a cheque of Rs. 45,000/- in favour of the respondent who had borrowed the money on the pretext that the same is to provide assistance to his sister whose husband had passed away.
3. According to the appellant, the cheque was issued on account of the family relations between the parties. In order to repay the money borrowed by the appellant, the respondent issued a cheque No. 975020 dated 29.03.2004 and assured the appellant that on presentation of the cheque after 01.04.2004, the same shall be honored. It is further submitted that the appellant presented the cheque for encasement at Union Bank of India, Old High Court, Gwalior. However, the same was dishonored due to insufficiency -( 2 )- Cr.A.No.262/2008 of fund in the account of respondent. After receiving the written memo, the appellant again presented the cheque after waiting of two months. Although upon the second presentation of the cheque the same was again dishonored. Whereafter, on 09.08.2004, the cheque was yet again presented for encasement, thought, having insufficiency of fund, the cheque was yet again dishonored. Consequently, as per the procedure under Section 138 of the Act, the present appellant issued a legal notice dated 24.08.2004 through his counsel which was sent by registered post as well as by UPC.
4. It has been stated by learned counsel for the appellant that the appellant did not receive any acknowledgment with respect to service of notice and, therefore, he submitted a letter on 09.09.2009 before the postmaster for seeking intimation about the date on which service of notice had taken place. Thereafter, the complaint was presented before the Court on 26.10.2004.
5. The trial Court issued summons to respondent and invited him to put-forth his explanation as to dishonor of the cheque. While the complaint was pending before the trial Court, the respondent moved an application under Section 482 of Code of Criminal Procedure, 1973, bearing M.Cr.C. No. 967/2006 for quashment of complaint case on the ground that same is barred by limitation. However, this Court did not quash the proceeding but relegated the issue for decision by the trial Court vide its order dated 22.11.2006.
6. learned trial Court followed the direction issued by this Court and proceeded to inquire into the date on which the service of notice was made to the respondent and the date on which the presentation of complaint is taken place. The trial Court afforded the opportunity to both the parties to lead evidence in this regard in order to establish their contentions. In the evidence, it had categorically appeared that the concerned postman visited the -( 3 )- Cr.A.No.262/2008 house of the respondent on 25.08.2004 and 26.08.02004. In view thereof, the learned trial Court recorded the finding that the notice is deemed to be served on 26.08.2004 and period of 15 days shall be counted from such date. Consequently, the present appellant was under an obligation to file the complaint on or before 10.12.2004 whereas the complaint was presented before the Court on 26.10.2004. Therefore, the complaint was held to be barred by limitation and hence, was rejected.
7. Learned counsel for the appellant has vehemently argued that the period of one month for presentation of complaint will commenced from the date on which the present appellant gathered information about the date of service of notice on the respondent. According to learned counsel, since the acknowledgment indicated the date of service was not returned to the appellant, therefore, application was made on 09.09.2004 to the post master for seeking the date of service of notice to the respondent. This intimation was received on 13.09.2004 and, therefore, limitation for presentation of complaint case will commenced from such date and hence, the complaint was filed within limitation prescribed under the Act. He further argued that the parliament in order to ensure that legitimate rights of an individual are not defeated on account of technical objection inserted the proviso to Section 142 of the Act, which empowers the concerned Magistrate to condone the delay caused in filing the complaint case if sufficient reason is offered. Therefore, he has submitted that the Court had ample powers to entertain the complaint which is shown to be barred by merely fourteen days.
8. Learned counsel for the respondent has pointed out that the omission on the part of the appellant why not filing any application under the Proviso appended to Section 142 of the Act and, therefore, the reliance placed under 142 of the Act is misplaced. He has also pointed out that the appellant did not -( 4 )- Cr.A.No.262/2008 produce relevant witnesses to establish his submissions and has committed a default which cannot be cured at this juncture. He has further submitted that the reliance placed on the judgment of the Supreme Court in case of K. Bhaskaran Vs. Shankaran Vaidyan Balan reported in (1999)7 SCC 510 is misplaced as the trial Court has followed the law propounded by the Supreme Court with respect to calculation of limitation for the purpose of Section 138 of the Act.
9. Considered the rival contentions advanced by the learned counsel for the parties and perused the record.
10. In order to adjudicate the instant case, it would be appropriate to first consider the contention of learned counsel for the respondent which relates to applicability of proviso to Section 142 of the Act to the case in hand. He has submitted that no application under the said proviso was preferred by the present appellant for seeking condonation of delay before the trial Court. With respect to this preposition, this Court has no hesitation in concluding that there is much force in the contention of the learned counsel for the respondent as in absence of the application for seeking condonation of delay, the Court below cannot be expected to conduct the inquiry into the reasons for the delay and based on satisfaction, condone the delay. In order to fortify this finding, the reliance can be placed on the decision of this court in the case of Keshav Chauhan Vs. Kiran Siingh reported in 2015(4) MPLJ 230 in which somewhat identical situation, there was a delay of six days in presentation of complaint case before the competent Court of jurisdiction, however, the complainant in the case did not present any application under the proviso of Section 142 (B) of the Act. However, in later part of the proceeding, the application under Section 5 of the Limitation Act, 1963 was filed before the Magistrate which was allowed by the concerned Magistrate and later, an order of conviction was passed.
-( 5 )- Cr.A.No.262/2008This final judgment was challenged by filing an appeal before the Sessions Court. The Sessions Court set aside the order of conviction and observed that the complaint case was barred by limitation and the order of conviction recorded by the magistrate is unlawful. This matter traveled to this Court and it was decided that the order passed by the Sessions Judge is just and proper and in absence of an application under the proviso of Section 142(B) of the Act, no condonation of delay even in case of delay of six days can be entertained.
11. It was further observed that the stage of moving an application under the said proviso is before cognizance is taken by the concerned magistrate and not subsequent to the date of cognizance. While recording this opinion, this Court has placed reliance on the judgment rendered by the Supreme Court in case of Subodh S. Salaskar Vs. Jayprakash M. Shah reported in (2008) 13 SCC 689. Relevant portion of the judgment is reproduced below:-
"9. Mr. Santosh Paul, learned counsel appearing on behalf of the respondent No. 1, submitted that from a perusal of the complaint petition it would appear that the date of service of notice being not fixed and the complainant having asked the post office to disclose the date of actual service of notice, it cannot be said that the legal notice was served upon the accused immediately after issuance thereof.
In any event, as the complaint petition disclosed commission of an offence on the part of the appellant under Section 420 of the Indian Penal Code, the High Court's judgment is unassailable.
10. Section 138 of the Act provides a penal provision. The object of the Parliament in brining the same in the statute book is well-known, viz., to create an atmosphere of faith and reliance in the banking system.
11. The Act was amended in the year 2002 whereby additional powers have been conferred upon the court to take cognizance even after expiry of the period of limitation by conferring on it a discretion to waive the period of one month.-( 6 )- Cr.A.No.262/2008
12. Before embarking on the questions raised, we may notice that the proviso appended to Section 138 of the Act limits the applicability of the main provision stating:
"138 - Dishonour of cheque for insufficiency, etc., of funds in the account *** *** *** Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(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 also puts a limitation in the power of the court to take cognizance of the offences, which reads as under:
"142 . Cognizance of offences Notwithstanding anything contained in the Code of Criminal Procedure, 1973 ( 2 of 1974 )--
(a) no court shall take cognizance of any offence punishable under section 138except 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."
13. As noticed hereinbefore, the proviso appended to Clause (b) of Section 142 of the Act was inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002.
-( 7 )- Cr.A.No.262/200814. A complaint petition alleging commission of an offence under Section 138 of the Act must demonstrate that the following ingredients exist, i.e.:
(a) a cheque was issued;
(b) he same was presented;
(c) but, it was dishonoured;
(d) a notice in terms of the said provision was served on the person sought to be made liable; and
(e) despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice. [See S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another (2007) 4 SCC 70, Saroj Kumar Poddar v. State (NCT of Delhi) and Another (2007) 3 SCC 693 and DCM Financial Services Ltd. v. J.N. Sareen and Another 2008 (8) SCALE 54]
15. Indisputably, therefore, unless the conditions precedent for taking cognizance of an offence under Section 138 of the Act are satisfied, the court will have no jurisdiction to pass an order in that behalf.
16. We will have to examine the contentions raised by the leaned counsel for the parties hereto keeping in view the aforementioned legal principles in mind. Before, however, we advert thereto, we may place on record that the averments made in the complaint petition in regard to service of notice are in the following terms:
"8. I say that the said Bank of the Accused, returned / dishonoured Cheque No. 460158 dated 28.09.2000 of Rs. 1,70,000/- drawn on Bank of India, Maheshwari Udyan Branch, Mumbai, under Bank remark "NO SUCH ACCOUNT WITH US". The said remark was given in handwriting by the Branch Manager of the Bank of India, Maheshwari Udyan Branch, Mumbai in its Bank Memo dated 10.01.2001, though in the said Bank Memo at Sr. No. 11, it is printed at 11(b) Account closed and at 11(c) no account. This Bank Memo was received by me on 17.01.2001. Attached herewith is Xerox copy of the said Cheque No. 460158 dated 28.09.2000 of Bank of India, 10.01.2001 and marked thereto as Exhibit "A" thereto which are very clear and self-explanatory. I am also attaching herewith Xerox copy of dishonoured Cheque No. 460157 dated 06.12.1996 of Rs.
26,900/- of the Accused drawn on Bank of India, Maheshwari Udyan Branch, Mumbai and marked it as Exhibit "B" thereto which speak much more about the -( 8 )- Cr.A.No.262/2008 Bank account No. 1365 of the Accused lying with his said Bank.
9. I say that immediately, vide my letter Ref. No. JMS/SSS/CRIM/01/2001 dated 17.01.2001, I sent demand notice to the Accused through Speed Post Acknowledgment due postal services. Attached herewith is Xerox copy of the said Demand Notice along with copy of postal speed post A.D. receipt No. 000271184 - SSPNL 650 dated 19.01.2001 and marked it as Exhibit "C" Colly thereto which is very clear and self-explanatory. I say that I have not yet received Speed Post Acknowledgement Slip with due acknowledgement thereon from the Accused as to the receipt of the said Demand notice.
10. I say that with abundant and due precautions with a view to avoid technicalities, through my advocate, Mr. Sunil Bagwe's letter Ref. No. SSB/JMS/BOI/01/2001 dated 05.03.2001 asked for detailed information as to the reasons given by the Branch Manager, in his Bank memo dated 10.01.2001. The Branch Manager of the said Bank Branch of the Accused, after various my approaches, finally given acknowledgement of the receipt of the aforesaid letter of my advocate on 14.03.2001, attached herewith is Xerox copy of the said letter and marked it as Exhibit "D" thereto which is very clear and self-explanatory. The Branch Manager of Bank of India, Maheshwari Udyan Branch, Mumbai vide his letter Ref. No. MU/ADV/MNI/39/853 dated 14.03.2001, given vague, non-cooperative, unwilling, ill-wishes reply to my advocate's letter by courier services on 26.03.2001. Attached herewith is Xerox copy of the said letter of the Bank of India and marked it as Exhibit "E" thereto which is very clear and self-explanatory."
12. This Court is in complete agreement with the ratio of the judgment laid down in the case of Subodh S. Salaskar (Supra) and concludes that the same is squarely applicable to the facts of the instant case.
13. Now adverting to the second contention canvased by the learned counsel for the appellant that the Court below and to have considered the explanation offered by the appellant i.e. on 09.09.2004, the application was made to the postmaster and after receiving intimation, the complaint case was presented before the Court below. I have examined the record in the context of this contention and I am of the opinion that the reason recorded by the Court below for refilling this explanation is just and proper -( 9 )- Cr.A.No.262/2008 because it is clear in the facts of the present case that on 26.10.2004 that the present appellant did not produce the concerned Advocate and the postmaster as a witness who could have established the communication dated 09.09.2004 and 13.09.2004. In absence of which this explanation cannot be accepted and has been rightly refilled after due consideration in paragraph 25 of the impugned judgment.
14. Taking this view of the mater, the appeal being devoid on merit is dismissed.
(S.K.Awasthi) Judge neetu