Delhi High Court
Padmini Polymers Ltd. vs Unit Trust Of India on 11 November, 2002
Equivalent citations: I(2003)BC382, 2003CRILJ1053, 101(2002)DLT376, [2003]42SCL36(DELHI), 2003 CRI. L. J. 1053, (2003) 2 ALLINDCAS 42 (DEL), (2003) 1 BANKCAS 382, (2003) 2 CIVLJ 592, (2002) 101 DLT 376, (2002) 65 DRJ 705, (2003) 1 RECCRIR 592, (2003) 1 BANKJ 806, (2003) 3 BANKCLR 510
Author: J.D. Kapoor
Bench: J.D. Kapoor
JUDGMENT J.D. Kapoor, J.
Crl.A. Nos. 421 and 288 of 2002.
1. Both the petitions shall stand decided through this common order as these petitions arise from the same order which is dated 18.12.2001.
2. Petitioners are the directors of M/s Padmini Technologies Ltd. Through this petition they have challenged the impugned order dated 18.12.2001 whereby they were summoned as accused for having committed the offence punishable under Section 138 Negotiable Instruments Act (for short "Act").
3. Admittedly the petitioner company M/s Polymers Technologies Ltd. issued two cheques bearing Nos. 247869 dated 25.06.2001 for Rs. 60 lakhs and 247870 dated 27.06.2001 for Rs. 65 Lakhs drawn on Vijaya Bank, Ansari Road, Daryaganj, Delhi in favor of the respondent for valuable consideration and in discharge of their liability legally recoverable from them. On presentation the said cheques were dishonoured. The factum of dishonoured cheques was brought to the notice of the petitioner vide letter dated 5.7.2001 sent on the letter head of the respondent company by its Chief General Manager. In the said letter it was mentioned that the Trust was proposing to initiate proceedings under Section 138 of the Act if the company would fail to pay the amount due to it. Pursuant to this communication and allegedly on the representation of the appellants the cheques were presented on as many as three occasions but on each occasion these were received dishonoured.
4. The respondents-company served a legal notice dated 17.11.2001 upon the petitioners through Mr. P. Nath & Company, Advocates, Supreme Court and High Courts in terms of Section 138 of the Act calling upon the petitioners to pay Rs. 1 Crore 25 lakhs together with interest @ 18% plus an amount of Rs. 21,000/- towards cost of the notice within 15 days from the receipt thereof through demand draft/pay order failing which they shall be compelled to file a criminal complaint. there was no response to the said notice nor was the payment made within 15 days. As a consequence the respondents filed a complaint under Section 138 of the Act resulting in the summoning order.
5. Main premise of challenge of the impugned order is that the complaint is time barred and is not maintainable as the first notice as contemplated under Section 138 of the Act was served upon the company on 5.7.2001 and the complaint ought to have been filed by complainant under Section 138 of the Act within 15 days and since the complaint was filed in December, the same is hopelessly barred by time. Apart from this, Mr. Sandip Sethi, learned counsel for the petitioners has referred to a notice dated 24.10.2001 which was served upon the petitioners as Directors of M/s Padmini Polymers Ltd. whereas the last notice dated 17.11.2001 was served upon them as directors of M/s Padmini Technologies Ltd. This confusion has arisen because the original name of the company M/s Padmini Polymers Ltd. was changed to M/s Padmini Technologies Ltd.
6. So far as the letter dated 5.7.2001 which is being used as sheet anchor by the petitioners is concerned it cannot by any stretch of imagination be termed as notice served upon the respondents as contemplated under Section 138 of the Act. Simply because a reference was given for initiating proceedings under Section 138 of the Act does not give a colour of notice as contemplated under Section 138 of the Act. Through this letter, only the fact that the cheque have been dishonoured was brought to the notice of the petitioners calling upon them to make the payment immediately of the outstanding dues. It was not a legal notice whereby the petitioners were called upon to make the payment within 15 days of the receipt of said notice as contemplated under Sub-clause (c) of Section 138 of the Act.
7. The notice as contemplated under Section 138 of the Act served upon the respondents is the one which is dated 17.11.2001 which was given through an Advocate and through which the petitioners were called upon to pay the outstanding dues with interest as well as cost of the notice within 15 days from the receipt thereof. The contention at this stage that during the period from 5.7.2001 to 17.11.2001 some talks took place between the parties and the assurance was given that they would make payment appears to be prima facie worthy of credence as the cheque were presented on as many as three occasions. Even otherwise the cheques can be presented as many times as the respondents deem proper but within the period of its validity or six months which is earlier. In Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998 (3) Crimes 217 (SC) it was observed that without taking pre-emptory action in exercise of his such right under Clause (b) of Section 138, a party can go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under Clause (b) of Section 138 he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise.
8. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires. In view of this provision the Supreme Court held that the cheque can be presented within six months of its issue or within the period of validity or earlier for any number of times. It is only when a notice calling upon the drawer of the cheque to make the payment of the amount of the cheque within 15 days of the receipt thereof is issued pursuant to the last presentation of the cheque which can be termed as a notice under Section 138 of the Act.
9. Unless an until the intention is clear on the part of the person giving notice that the payment by the drawer of the cheque should be made within 15 days of receipt thereof any communication between the parties insisting for making the payment cannot be termed as a notice under Section 138 of the Act. Otherwise the purpose of presenting the cheque time and again during the period of validity would have no meaning. The period of limitation to file the complaint stars running from the last notice which is given strictly in terms of Section 138 wherein the limit of 15 days for making the payment from the receipt of notice is specifically mentioned or referred to.
10. Thus it is only when a notice under Section 138 is served and the aggrieved party fails to initiate the proceedings within time that it forfeits the right to proceed subsequently and thereafter presentation of the cheques is not permissible nor is the dishonouring of the cheque of any relevance.
11. Thus on prima facie view of the matter and the facts of the case coupled with the notice dated 17.11.2001 served upon the company on whose behalf the cheque were issued. I perceive no reason to interfere with the impugned order. The petition has no merit and is hereby dismissed.