Gauhati High Court
Vijay Singh Jain And Anr. vs Abdul Rahman on 8 March, 2007
Equivalent citations: I(2008)BC651, 2007(2)GLT895
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. The order, under challenge in the present revision, was passed, on 23.06.2006, by the learned Judicial Magistrate, 1st Class, Golaghat, in CR Case No. 1026 of 2006, taking cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 (in short, "the NI Act") and directing issuance of summons against the present petitioner as accused and also the order, dated 03.08.2006, passed therein, whereby issuance of warrants of arrest against the present petitioners, as accused in the said case, was directed.
2. The material facts and various stages, which have led to the present revision, may, in brief, be set out as follows:
(i) The opposite party herein lodged the complaint, which gave rise to CR Case No. 604/2005, the case of the complainant being, briefly put, thus: The complainant supplied green tea-leafs to M/s In do Assam Tea Co. Pvt. Ltd., a company incorporated under the Companies Act, and upon receiving delivery of the tea-leafs, the accused No. 1, namely, Ratan Kumar Jain, Managing Director and authorized signatory of the said company, issued a cheque, on 10.02.2005, for a sum of Rs. 1,50,000/- drawn on the Central Bank of India, Jorhat Branch, for payment of the dues of the complainant. This cheque was deposited by the complainant, on 10.02.2005, with the Central Bank of India, Golaghat, for collection of the cheque and crediting the amount into the complainant's account. However, on 10.02.2005 itself, the cheque was returned by the bank to its Golaghat Branch for "insufficiency of funds". On the cheque being so dishonoured, the Central Bank of India, Golaghat Branch, returned to the complainant the said cheque, on 12.02.2005, along with the original cheque and the memo issued therewith by the Central Bank of India, Jorhat Branch. In order to protect his business relationship with the accused company, the complainant contacted the said Ratan Kr. Jain requesting for payment of his dues and, thereafter, as per the assurance given by the accused aforementioned, the complainant deposited the said cheque, once again, on 01.03.2005, with the Golaghat Branch for collection; but on this occasion too, the bank returned the said cheque, on 01.03.2005 itself, to its Golaghat Branch for reasons of "insufficiency of funds". On the second dishonour of cheque, the said bank returned the said cheque to the complainant by its letter, dated 04.03.2005, along with the original cheque and the memo issued, in this regard, by the Jorhat Branch of the said bank. As the complainant could not realize the payment of his dues, he issued a notice under Section 138 . of the NI Act, on 14.03.2005, addressed to said Ratan Kumar Jain and also the accused company demanding payment of the cheque amount. This notice was duly received by the accused aforementioned on 17.03.2005 and reply thereto was given by the accused No. 1, namely, Ratan Kumar Jain, by his letter, dated 21.03.2005. Having not received the payment of the cheque amount, the complainant lodged the complaint, which gave rise to CR Case No. 605/2005 aforementioned.
(ii) After recording the initial deposition of the complainant under Section 200 Cr.P.C. on 06.05.2005, the learned Court below took cognizance of offence under Section 138 of the NI Act and issued summons accordingly. In course of time, a warrant of arrest was issued against accused Ratan Kumar Jain aforementioned. For reasons of default, this complaint case was dismissed by the Court on 08.06.2006.
(iii) The complainant, then, lodged another complaint, on 26.06.2006, in the same Court, for dishonour of the said cheque on 10.02.2005, the complaint having been made this time not only against the said accused company; but also against the present petitioners as accused. Upon recording the statement of the complainant, under Section 200 Cr.P.C. on 26.06.2006, the learned Court below took cognizance of offence under Section 138 of the NI Act against the present petitioners as accused and directed issuance of summons to them. In course of time warrants of arrest were directed to be issued against the accused-petitioner. Aggrieved by the order, dated 26.06.2006, whereby cognizance of offence aforementioned has been taken against them as accused and also the order, dated 03.08.2006, aforementioned, whereby warrants of arrest have been directed to be issued against the accused petitioners, the present petitioners have, now, come to this Court with this petition made under Section 482 read with Sections 397 and 401 Cr.P.C.
3. I have heard Mr. K. Agarwal, learned Counsel for the accused-petitioners, and Mr. J. Roy, learned Counsel appearing on behalf of the complainant-opposite party.
4. While considering the present revision, it is apposite to take note of the provisions of Sections 138 and 142 of the NI Act. With this end in view, both these Sections are reproduced hereinbelow:
138. Dishonour of cheque for insufficiency, etc. of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
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.
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 138 except 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 Metropolitian Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.
5. A cautious reading of Clause (b) of the proviso to Section 138 makes it clear that when any cheque is dishonoured by the bank for "insufficiency of fund" or for the reason that the amount for which the cheque has been issued exceeds the arrangement for payment made with the bank by the person, who has issued the cheque, the payee or the holder of the cheque, as the case may be, shall make demand for payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque within thirty days from the date of receipt of information by him from the bank regarding the return of the cheque as unpaid. Clause (c) of the proviso to Section 138 further makes it clear that if the drawer of the cheque fails to make payment of the amount of the money to the payee or to the holder of the cheque, as the case may be within a period of fifteen days, the drawer of the cheque shall be liable to be punished with imprisonment for a term, which may extend to two years or with fine, which may extend to twice the amount of cheque, or with both.
6. What clearly transpires from a careful reading of Section 138, as a whole, is that upon dishonour of a cheque, a notice of demand for payment of the cheque amount shall be made by the payee or the holder of the cheque by giving a notice, in writing, to the drawer of the cheque within a period of 30 days from the date of the receipt of the information by the payee or holder of the cheque that the cheque has been returned unpaid for lack of funds and if, within aperiod of fifteen days thereafter, the drawee does not make payment of the amount mentioned in the cheque, the drawer of the cheque becomes liable for punishment in terms of the provisions of Section 138.
7. Coupled with the above, Section 142 makes it clear that no Court shall take cognizance of an offence, punishable under Section 138, if the complaint is not made within a month from the date on which the cause of action has arisen under Clause (c) of the proviso to Section 138.
8. What emerges from the above discussion is that if, on receipt of the notice of demand, the drawee of the cheque does not, within a period of 15 days, from the date of receipt of the notice of demand, make payment of the amount of money for which the cheque, was drawn, the payee or holder of the cheque as the case may be, must make his complaint for prosecution of the drawee or holder of the cheque within a period of one month thereafter. If the complaint has not been made within the period aforementioned and the delay, in filing of the complaint, is not condoned, cognizance of the offense, under Section 138 of the NI Act, cannot be taken by the Court.
9. Bearing in mind what has been indicated above, when I turn to the factual matrix of the present case, what attracts the eyes is that in the present case, upon dishonour of the cheque, the complainant gave, on 14.03.2005, a notice of demand, as required under Clause (b) of the proviso to Section 138, and as the payment was not made by Ratan Kumar Jain aforementioned, the first complaint was lodged on 05.05.2005, which gave rise to CR Case No. 604/2005 aforementioned. This complaint case was, eventually, dismissed for default on 08.06.2006. From the facts, so narrated, it becomes abundantly clear that apart from the fact that a second complaint cannot be lodged for the same cause of action under Section 142 of the NI Act, the cognizance, in the present case, has been taken by the impugned order aforementioned long after the period of limitation has expired inasmuch as the congnizance, in the second case, has been taken on 26.06.2006, whereas the notice, raising the demand for payment of the cheque amount, was given by the complainant as early as on 17.08.2005. Situated thus, there can be no escape from the conclusion that the learned Court below was legally not empowered to take cognizance of the offence under Section 138 of the NI Act, in the present case, as far as the present accused-petitioners are concerned.
10. Because of what have been discussed and pointed out above, the impugned order, dated 26.06.2006, is clearly without jurisdiction and such an order shall, if allowed to survive, cause serious miscarriage of justice.
11. In the result and for the reasons discussed above, this revision succeeds and the impugned orders are hereby set aside.
With the above observations and directions, this revision shall stand disposed of.