Calcutta High Court (Appellete Side)
Sandip Guha vs Saktipada Ghosh & Anr on 16 April, 2008
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Criminal Jurisdiction
Present:
The Hon'ble Mr. Justice Partha Sakha Datta
CRR 1766-67 of 1998
CRR 2110-2111 of 1998
Sandip Guha
Vs.
Saktipada Ghosh & Anr
For Appellant/petitioner : Mr. S.S. Roy
Mr. D.K. Samanta
Mr. A.K. Pal
Mr. B.P. Samanta
For the Complainant/O.P. : Mr. Ashoke Kumar Chakraborty
Mr. Pinaki Ranjan Chakraborty
For the State: Ms. Minoti Gomes
Judgment on: 16-04-2008
Partha Sakha Datta, J :-
CRR 1766 of 1998, CRR 1767 of 1998, CRR 2110 of 1998 and CRR
2111 of 1998 are being disposed of by this common judgment and
order since parties are the same and one common question of law is
involved in all these four proceedings.
In all the revisional applications the accused is the
petitioner who in CR Case No. 774 of 1997 (CRR 1766 of 1998)
issued a cheque in favour of the opposite party i.e. Doluibazar
Agricultural Credit Society Ltd. being represented by its
Secretary Saktipada Ghosh for Rs.3 lac on 07-11-1997 towards
discharge of debt. He further issued a cheque for Rs.2,50,000/-
on 10-11-1997 in favour of the said opposite party towards
repayment of loan in connection with it Burdwan (CR No. 773 of
1997) pending in the 3rd Court, Burdwan out of which the CRR 1767
of 1998 has arisen. Similarly in CR No. 775 of 1997 out of which
the CRR No. 2110 of 1998 has arisen the petitioner issued a cheque
in favour of the opposite party for Rs.1 lac on 08-11-1997 towards
repayment of loan. In connection with CR No. 772 of 1997 pending
in the court of the Judicial Magistrate, 2nd Court, Burdwan out of
which the CRR No. 2111 of 1998 has arisen the petitioner issued a
cheque on 11-11-1997 in favour of the opposite party for Rs.3 lac
towards repayment of the loan. All the cheques were bounced
because of insufficiency of fund in the account of the petitioner.
Then followed statutory notice under Section 138(b) of the N.I.
Act. Repayments were not made in respect of the bounced cheques
and consequently four separate petition of complaints were lodged.
In all the four cases statutory notice was served on 01-12-
1997 and all the four complaints were filed on 15-12-1997.
The only question involved in the four revisional
applications is whether the four petition of complaints were
premature or not. Clause (c) of Section 138 of the N.I. Act
provides that nothing contained in this Section shall apply
unless:
"(c). The drawer of such cheques 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 15 days of the
receipt of the said notice".
Section 142 of the Act reads as follows:-
"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;
(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."
Thus according to the learned advocate for the petitioner,
the petitioner was not given a complete 15 days time which he was
entitled to under the law from the date of receipt of the notice
so as to arrange for payment of the monies towards discharge debt
or legal liability; and before expiry of the 15 days the petition
of complaints were filed in violation of the provision of clause
(b) of Section 142 read with clause (C) of Section 138 of the Act.
According to the learned advocate for the petitioner learned
Magistrate was legally erroneous in taking cognizance of premature
complaints and to hold that the petitioner did not make payment of
the money and evaded payment is of no good because when the
statute provides that criminal action can be initiated only after
expiry of 15 days the payee of the cheque has to wait for the
expiry of the statutory period and a complaint lodged before the
expiry of the statutory period cannot be taken cognizance of with
respect to the offence alleged and such complaint truly is not a
complaint to redress a legal wrong.
Mr. Ashok Kumar Chakraborty, learned Senior Advocate
appearing for the opposite party/complainant submits that even
though the petitioner got notice of dishonourment of cheque on 01-
12-1997 no payment was made till 15-12-1997 and the cause of
action would accrue the moment the notice is served upon the
drawer of the cheque. It is submitted that it is absurd to say
that the cause of action would accrue only on expiry of 15 days
from the date of the receipt of the notice because to hold so it
would erase the starting date of the period of 15 days envisaged
in clause (c) of Section 138 of the Act. According to Mr.
Chakraborty the starting date is the date of receipt of notice and
once it starts the offence is completed on the failure of the
drawer to make payment of the money within 15 days. It is
submitted that object of the Act has to be appreciated and
interpreted in its proper perspective and even payment of the
entire amount during trial does not absolve the accused-drawer of
the liability of offence, having regard to the decision in Rajnath
Agarwal vs. Amith J. Valia, AIR 2001 SC 518. It is submitted by
Mr. Chakraborty that the object of the enactment has to be
interpreted in the light of the decision in Dalmia Cement vs.
Galaxy Traders, AIR 2001 SC 676. Thus, according to Mr.
Chakraborty cause of action arises once the notice is served and
not on the expiry of 15 days. In this connection I have been
taken to the decision in Sil Import, USA vs. Exim Aides,Silk
Exporter, Bangalore AIR 1999 SC 1609.
Upon hearing the learned advocates for the parties the
question is if the right to institute a complaint under Section
138 of the N.I. Act is said to have arisen the moment the drawer
of the cheque receives the statutory notice then whether the
provision in clause (c) of Section 138 of the Act becomes otiose
or not. Clause (b) of Section 142 provides that the complaint has
to be made within a month of the date on which the cause of action
arises under clause (c) of the proviso to Section 138 of the N.I.
Act. Clause (c) of Section 138 mandates the drawer of the cheque
to make payment of the amount of the money to the payee within 15
days of the receipt of the notice. Thus, under the statute the
drawer of the cheque has been given 15 days time to make payment
of the amount of the money and, if no payment is made within 15
days of the receipt of the notice then cause of action arises to
institute a complaint within a month of the date on which the
cause of action arises. Therefore, giving a plain reading of the
relevant provision of Section 138 and Section 142 of the Act it
does not appear that the payee of the cheque can lodge complaint
before the expiry of the statutory period of time which the drawer
of the cheque gets so as to make payment of the amount of the
money. Or else, reconciliability of clause (c) of Section 138
with clause (b) of Section 142 of the Act becomes impossible if it
is held that the payee of the cheque is entitled to institute
complaint on any day soon after the notice is received by the
drawer. I have gone through the decisions in Dalmiya Cement
(Bharat Ltd.) as reported in 2001 SCC (Cri) 1163 and Sil Import as
reported in 1999 SCC (Cri) 600. These two decisions are
completely in a different fact situation. The decision in Dalmiya
Cement (supra) was rendered on the basis of Sil Import (supra). In
Dalmiya Cement case (supra) the facts were somewhat peculiar which
are not relevant in the case before us and it appears that in
order to put embargo on a dishonest drawer Their Lordships were
inclined to compute the period of limitation from the date of
service of the second notice. Here the notice regarding non-
payment of the cheque amount was communicated by the bank to the
complainant on 02-06-1998. On 13-06-1998, the complainant issued
a statutory notice upon the respondent who received the notice and
acknowledgement was received by the complainant on 15-06-1998. The respondent by their letter dated 20-06-1998 which was received by the appellant on 30-06-1998 intimated that they received empty envelopes without any contents and requested the appellant to mail the contents. By the time the complainant received the intimation of the respondents, the statutory period of filing the complaint was about to expire. Believing the averments of the respondent's letter to be true the appellant presented the cheuqe again on 01- 07-1998 to the drawee bank which was again dishonoured on 02-07- 1998. Then followed statutory notice which was received by the payee on 27-07-1998 but no payment was made. According to the complainant the accused on 06-08-1998 sent a registered cover which contained some waste newspaper bits. As despite dishonour of the cheque and receipt of notice the amount was not paid the appellant filed the complaint on 09-09-1998 within the statutory period from the date of service of the second notice. The High Court quashed the complaint on the ground of limitation. The Hon'ble Supreme Court held that the respondents tried to blow hot and cold in the same breath, stating on the one hand that the notice of dishonour had not been received by them and on the other praying for dismissal of the complaint on the plea that the complaint was barred by time in view of the notice served by the appellant which they had not received. The plea of the respondents was not only contradictory and afterthought but apparently carved out to resist the claim of the complainant and thereby frustrate the provisions of law. Now in this case also there has been reference to Sil Import case (supra) very extensively and the entire paragraph 7 in the judgment of Sil Import case (supra) was quoted. The said paragraph 7 in Sil Import case has been reproduced in the last part of paragraph 13 of this judgment, and it bears no repetition.
Thus in Dalmiya Cement Case (supra) also though the facts are not of relevance to us the ratio of the decision in Sil Import case (supra) has been relied on by their Lordships in the Dalmiya Cement case (supra). In Sil Import case (supra) the question directly arose whether the sender of the notice must know the date when it was received by the sendee as the High Court was of the view that for otherwise he would not be in a position to count the period in order to ascertain the date when cause of action had arisen. Their Lordships in the Sil Import case (supra) clearly and categorically held that the High Court's view is erroneous in inasmuch as it erases the starting date of the period of 15 days envisaged in proviso (c) to Section 138 and according to their Lordships if a different interpretation is given the absolute interdict incorporated in Section 142 of the Act that no court shall take cognizance any offence unless the complaint is made within one month of the date on which the cause of action arises would become otiose. Thus according to their Lordships the starting point is the date of the receipt of the notice (not of the date of knowledge of the complainant about receipt of the notice by the drawer) and once it starts the offence is completed on the failure to pay the amount within 15 days therefrom. Thus in all the three cases decided by the Hon'ble Supreme Court it has been consistently held that the cause of action arises from the date of receipt of the notice and limitation starts from that day which cannot be erased by any amount of other interpretation.
Thus on the contrary in the Sil Import case it has been categorically held that the starting point is the date of the receipt of the notice and once it starts the offence is completed on the failure to pay the amount within 15 days therefrom (emphasis mine). Thus, unless the offence is completed right to lodge complaint does not arise. In Narsingh Das Tapadia vs. Goverdhan Das Partani & Anr. 2000 C.Cr.LR (SC) 522 the exact situation arose. Their Lordships of the Supreme Court held that if the complaint is found to be premature it can await maturity or the Court can return to the complainant for filing later. A complaint can be filed prematurely but what is barred is taking cognizance of offence by the Magistrate before expiry of the statutory period of 15 days. Herein in the reported decision though the complaint was filed prematurely the learned Magistrate took cognizance of offence after expiry of the statutory period of 15 days and in that view of the matter their Lordships held that the complaint was in order. This decision is decisive on the point that if a complaint is filed prematurely and cognizance is taken prematurely then it is hit by Section 142 (b) read with Section 138 (c) of the N.I. Act. In M/s. Sarav Investment & Financial Consultants Pvt. Ltd. & Anr. Vs. Llyods Register of Shipping Indian Office Staff Provident Fund & Anr., JT 2007 (11) SC 580 the interpretation of the relevant provisions as above has been more explicit. In this reported decision complaint was found to be premature and issuance of summons calling upon the appellants to appear was held to be illegal and could not be sustained. Their Lordships of the Supreme court held that clause
(c) of Section 138 provides that the drawer of the cheque must be given an opportunity to pay the amount in question within 15 days of the receipt of the notice and petition of complaint can be filed for commission of an offence by payee only 15 days after service of the notice. In Harpreet Hosiery Rehari vs. Nitu, 2000 Cri L.J. 3625 the complaint was filed on 14th day and not after expiry of 15 days and the Jammu and Kashmir High Court upheld the order of dismissal of the complaint passed by the Magistrate. Herein, in the instant case if the learned Magistrate would not have taken cognizance of an offence on 15-12-1997 and have waited till the maturity was arrived at, then the proceedings in terms of the decision in Narsingh Das Tapadia (supra) would have been maintainable. But that was not done. The words "within 15 days of the receipt of the said notice" as occurring in clause (c) of Section 138 of the Act is significant. Taking a cue from a catena of decisions of different High Courts as also of the Supreme Court in Saketh India vs. India Securities, AIR 1999 SC 1090, Sil Import (supra) and Suresh Chandra vs. Birdichan, AIR 1965 SC 229, a Full Bench decision of the Gujarat High Court in Patel Dinnesh Kumar vs. Patel Keshavlal, 2000 Cri L.J. 3547 held that the period of 15 days envisaged by Section 138 (c) of the N.I. Act will begin to run on the day next to the day on which the service of notice has been effected. Thus, if the petitioner has received the notice on 01-12-1997 then he is entitled to exclude that day for the purpose of computation of the period of time within which payment is to be made. Complaints were filed on 15-12-1997. Therefore, it clearly appears that the petitions of complaint were premature and they could not be treated as complaints in the eye of law. In such circumstances, the revisional applications are allowed.
The Criminal proceedings are quashed. A copy of the judgment shall be sent to the learned Judicial Magistrate concerned for information and necessary action. Accused persons shall be deemed to have been discharged from bail bonds.
Urgent xerox certified copies, if applied for, be given to the parties as expeditiously as possible.
(Partha Sakha Datta, J,)