Madras High Court
Kody Elcot Ltd. vs Down Town Hospital on 4 January, 1990
JUDGMENT Arunachalam, J.
1. The petitioner who filed a private complaint against the respondent before the Judicial Magistrate,Saiapet,Madras,is a limited company carring on trade at Thiruvanmiyur with in the local jurisdiction of the aforementioned Magistrate.
2. The petitioner filed the complaints against the respondent for analleged offence under section 138 of the Negotiable Instruments Act,1881,read withe section 142 of the said Act,as modified by Act 66 of 1988. The allegations made in the comoplaint were that the respondent placed an order with the petitioner for supply of ultra sound scanner XL model with atechments. In pursuance of the order,the petitioner despatched the goods to the respondent on July 30,1988. After the installation of tahe scanner,a part payment towards its cost was made by the respondent. Towaards the balance amount due,the respondent sent to the petitioner a cheque dated December 2,1988,drawn on United Commercial Bank,Guwahaty,for Rs.1,00,000. The patitioner presented this cheque to the Bank of India at Madras on May 20,1989.The cheque was returned by the patitioner's banker with an endorsement "exceed arrangements". The petitioner,thereafter,on June 5,1989,sent a registered notice to the respondent stating that the deliberate issie of cheque founds was an offence punishable under section 138 of the Negotiable Instruments Act and that the respondent should arrange to clear the dues. The said notice was receiced on June 16,1989,by the respondent who had,by a letter dated June 17,1989,acknoledged the said receipt. Thereafter,the petitioner preferred the private complaint on July 12,1989.
3. The Trial Magistratre returned the compl;aint to the petitioner holding that the facts mentioned in the complaint did not constitute an offence for takinf cognization. In the course of his reasoning,the Trial Magistrate has observed that,at the time of issuing the cheque involved in this case,section 138 and 142 of the Act were not in force and they were in force and they were brought in to the staute book with effect only from April 1,1989. In the view of the Magistrate,retrospective operation could not be given to those section so as to attach a new disability in respect of past transations,since the fundanmental rule of English law was that no state shall be construction to have retrospective operation unless such a construction appeared clearly or would or would aries by necessary and distinct implication.
4. Challenging the return of the complaint by the Judicial Magistrate,Saidapet,as not in consonance with law,this petition has been filed under section, 482,Criminal Procedure Code,to set aside the order,with a further direction to the Magistrate to dispose of the compa=laint in accordance with law.
5. Mr. R.Subramania Aiyar,learned counsel for the petitioner contended that the Magistrate had erred in interpreting the provisions of section 138 and 142(b) of the Negotiable Instrument Act,as amended by Act. He also urged that the date of issue of the cheque was immaterial and all that was required by the law was that it should have been dishonoured after April 1,1989,when the provision of the Act become operative.
6. Since the complaint was returned evenbefore taking it on file,the respondent had not come into the picture and,in law,is not entitiled to any notice at this stage. However,I heard Mr.R.Shanmughasundaram,the learned Additiona Public Prosecutor,in respect of all the contentions put forth by learned counsel for the petitioner. The Additional Public Prosecutor represented that the date of issue of the cheque cannot be material circumstance since it would be current for six month and if the cheques was returned by the bank for the reasons contempalted under the Act,the offence would be ciomplate.
7. I have carefully considered the submission made by both learned counsel. It is better to extact section 138 and 142 of the Act. "138.Dishonour of the cheqque for insuffiency,etc.,of funds in the account-Where any cheque drawn by person on an account mained by him with a banket for payment of any amount of money to another person from out of that account for the charges,in whole or in part of any debt or either liability,is returned by the bank unpaid,either because the amount of money standing to the credit of that accounts is insuffient to honour the cheque or it exceed the amount arranged to be paid from that account by an agreement made awith that bank,such person shall be deemed to have cimmitted an offence and shall,without preudice to any other provisions of this Act, be punished with fine which may extend to twice the amount the cheque or with both:
Provided that noting cintained in this section shall apply unless-
(a)the cheque has been presented to the bank within a period of 6 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 the money by giving a notice,in writing to the drawer of the cheque with in 15 days of recept 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 said amount of money to the payee,or,as the case may be,to the holder indue course of the cheque within 15 days of receipt of the said notice.
Explanation-For the purpose of this section, debt or other liability' means a legally enforceable debt or other liability.