Delhi High Court
Gujral Tours & Travels P.Ltd. vs Anup Gulati on 7 December, 2009
Equivalent citations: AIR 2010 (NOC) 408 (DEL.), 2010 CRI. L. J. (NOC) 551 (DEL.) 2010 (3) AKAR (NOC) 299 (DEL.), 2010 (3) AKAR (NOC) 299 (DEL.), 2010 (3) AKAR (NOC) 299 (DEL.) 2010 CRI. L. J. (NOC) 551 (DEL.), 2010 CRI. L. J. (NOC) 551 (DEL.)
Author: V.K. Jain
Bench: V.K. Jain
13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- December 7, 2009
+ CRL.M.C. 948/2009
GUJRAL TOURS & TRAVELS P.LTD. ..... Petitioner
Through Mr.Munish Tyagi, Advocate.
versus
ANUP GULATI ..... Respondent
Through Mr.K.Venkatraman with Mr.Manish Kumar,
Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
V.K.JAIN, J. (ORAL)
1. This is a petition under Section 482 of the Code of Criminal Procedure against the judgment dated 27.1.2009 passed by the learned Additional Sessions Judge whereby the revision filed by the respondent was allowed and he was discharged in a criminal complaint filed by the petitioner against him under Section 138 of Negotiable Instruments Act.
2. The complaint in question was filed on 30.1.1999. It was alleged in paragraph 3 of the complaint that the respondent who had purchased air Crlmc948.09 Page 1 tickets from the complainant - Company issued a cheque for Rs.3,65,192/- (Rupees Three Lakh Sixty Five Thousand One Hundred and Ninety Two only), which, when presented to the Bank for encashment, was returned unpaid with the remarks "exceeds arrangements". It has been further alleged that the complainant served notice dated 26.11.1998 upon the accused and that notice was deliberately refused by him, by way of avoiding to take delivery of notice, as per postal endorsement dated 8.12.1998 on the registered cover. It has also been alleged in paragraph 4 of the complaint that the notice was served on 15.12.1998 by personal delivery also.
3. Learned counsel for the respondent has referred to the decision of the Hon'ble Supreme Court in The State of Madhya Pradesh vs. Hiralal & Ors., JT 1996 (1) S.C. 669, where, postal remarks to the effect "not available in the house," "House Locked" and "shop closed", were held to be service of notice upon the respondent. In Subodh S.Salaskar vs. Jayaprakash M. Shah, AIR 2008 SC 3086, the Hon'ble Supreme Court held that presumption of service under Section 114 of Evidence Act would also arise if the notice is received back with an endorsement that the party had refused to accept it. In the present case, this is petitioner's own case in paragraph 5 of the complaint that it had served registered notice upon the respondent vide postal receipt No.8288. Thus, the petitioner/complainant itself claims service upon the respondent on account of the endorsement of the postal department on the registered cover.
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4. In view of the provisions of Section 138(c) of Negotiable Instruments Act, the respondent had fifteen days time from the date of receipt of the notice, to make payment of the amount of the cheque. Therefore, the cause of action for filing the complaint arose on 23.12.1998 when fifteen days expired from the date on which service was effected upon the respondent on account of refusal by him.
5. Section 142 of Negotiable Instruments Act, to the extent it is relevant, provides that notwithstanding anything contained in the Code of Criminal Procedure, no court shall take cognizance of any offence punishable under Section 138, unless 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. Therefore, the prescribed period of limitation for filing the complaint expired on 23.1.1999. The complaint having been filed on 30.1.1999 is patently barred by limitation and the Court is precluded from taking cognizance of the offence disclosed in the complaint, in view of the provisions of Section 142 of Negotiable Instruments Act.
6. It was contended by learned counsel for the petitioner that since the notice by hand was also delivered to the respondent on 15.12.1998, if computed from that date, the cause of action arose only on 30.12.1988 and the complaint having been filed on 30.1.1999 is within limitation. As noted by the Hon'ble Supreme Court in Sadanandan Bhadran vs. Madhavan Sunil Kumar, JT 1998 (6) SC 48, the cause of action in a complaint under Crlmc948.09 Page 3 Section 142 of Negotiable Instruments Act arises only once. That cause of action arose on 23.12.1998 when the fifteen days time available to the respondent to make payment of the amount of the cheque expired. A fresh service of the notice on a subsequent date would not give rise to a fresh cause of action as far as the criminal liability under Section 138 of Negotiable Instructions Act is concerned.
7. Moreover, if the complaint is considered on the basis of the notice served on 15.12.1998, the respondent could not have been prosecuted under Section 138 of Negotiable Instruments Act for the simple reason that in that case the requisite notice was not issued within fifteen days from the date of receipt of intimation from the Bank regarding dishonor of the cheque. If the notice was personally delivered to the respondent on 15.12.1998, that would mean, it was still in the hand of the complainant/petitioner till that date, meaning thereby that on the day the stipulated period of fifteen days expired, the notice was not out of the control of the petitioner/complainant and, therefore, was not fixed prior to 15.12.1998.
For the reasons given in the preceding paragraphs, I find no merit in the petition and the same is, therefore, dismissed.
V.K. JAIN,J
DECEMBER 07, 2009
'sn'
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