Gujarat High Court
Ghanshyam M. Swamy vs Classic Steel Products on 23 January, 1991
Equivalent citations: [1992]75COMPCAS695(GUJ), (1991)2GLR1075
JUDGMENT N.J. Pandya, J.
1. The original complainant in Criminal Case No. 894 of 1989 of the Court of J.M.F.C., Mirzapur has filed the present revision application against an order below, exhibit 14, of the said criminal case, Initially, the complaint came to be dealt with by the learned Chief Judicial Magistrate of Magistrate Court, Mirzapur, Ahmedabad, Rural District, who was pleased to take cognizance on July 7, 1989, the date of the filing of the complaint and was pleased to order that process be issued for an offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act").
2. The matter, thereafter, came to be transferred to the said court of J.M.F.C. and, to be precise, the fourth court and there application, exhibit 14, came to be given by the respondents-accused for quashing of the said criminal case on January 6, 1990. The learned Magistrate heard the parties and by his order dated January 31, 1990, allowed the application and acquitted the accused. Now, we are not concerned with whether he could have acquitted the accused under section 203 of the Criminal Procedure Code or what order should have to be passed at the end of the hearing of the said application, if at all he was inclined to accept the contentions of the accused. We are concentrating entirely on the question on the basis of various dates given in the complaint, viz., was it possible for the learned Magistrate to hold that the complaint is time-barred ? My answer is in the negative.
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3. The second proviso is to the effect that within 15 days of receipt of information by the payee or the holder in due course regarding the return of cheque unpaid, he should make a demand by giving a notice in writing. This also, in the instant case, has been done within the said period of 15 days.
4. The last proviso gives a sort of reprieve to the defaulter in the sense that, over and above the said period mentioned in the said Act with regard to negotiable instruments there is also a period of 15 days provided on his receiving the notice. In the instant case, according to the complainant, the notice came to be refused on June 12, 1989, and, with regard to this fact, namely, instead of actually physically receiving the notice there being a refusal relied on by the complainant, a contention has been raised on behalf of the accused which would be dealt with, if necessary, at a later stage.
5. Now, when we go to section 142 of the said Act where cognizance itself has been prevented to be taken by the competent court as per clause (b) thereof and it reads as under :
"(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."
Now, in view of the aforesaid factual background, the period of one month mentioned in clause (b), noted above, would certainly start from the date of refusal, i.e., June 12, 1989, and the complaint having been filed on July 7, 1989, clearly is within time and there is no question whatsoever of its being time-barred.
6. However, the learned Magistrate seems to have taken the view that, within 15 days of the return of the cheque and probably that would be logically the position after issuing the notice, without waiting for its result, the complaint should have been filed. This view of the learned Magistrate is just not tenable in view of the clear and unambiguous language of the concerned statute.
7. When we turn to the reasoning given by the learned Magistrate, we find in para 4 at page 21 of the paper book that, somehow or other, he has insisted upon the requirement of filing the complaint within 15 days of the date of issuing the notice and that is how he has specified May 29, 1989, on which date, according to the complainant, the notice was issued and 15 days thereafter, according to him, the complaint should have been filed. But when we read the aforesaid paragraph, we find that he has specified the date by which the complaint should have been filed to be May 17, 1989, which is, even according to his own reasoning, 10 days prior to the issuance of notice which is totally incorrect and wholly untenable. It may be that, instead of May 17, 1989, what he means is June 27, 1989, which should be the position if we reckon 15 days from June 12, 1989, the date on which, according to the complainant, the notices were refused.
8. Prior thereto, he has also referred to the actual receipt of notice because he has referred to clause (c) of section 138, proviso, and has, thereafter, expressed himself to the effect that 15 days are provided therein after the accused receives the notice. But, he has further noted that, when no such notices have been received, there could not be any question of counting this period of 15 days. Confining ourselves to the aforesaid reasoning of the learned Magistrate, it is quite clear that there is no reason whatsoever for him to express himself in this manner because clause (b) of section 142 refers by incorporation to clause (c) of section 138, proviso, a 15 day period is given by way of grace to the drawer to honour his commitment as per the cheque. If we are to agree with the learned Magistrate, it would mean that no complaint could ever be filed because, on the lone hand, the holder of the cheque or the payee thereof has to wait till the end of the 15 day, that is, the statutory grace period available to the drawer of the cheque to honour his commitment and on the other hand, he would be precluded from filing the complaint and be hit by the period of limitation under clause (b) of section 142 as interpreted by the learned Magistrate. This could never be the intent of the Legislature and it is not.
9. It is quite clear that the one-month period referred to in clause (b) of section 142 shall be reckoned only from the end of the 15th day as provided in clause (c) if at all the complainant has issued the notice. Now, if he does not issue any notice, there cannot be any cause of action and therefore, the issuance of notice is a must which, in the instant case, has been complied with.