Karnataka High Court
Srikanth P. Hutagee vs Gangahdar S. Hutagekar on 16 July, 2004
Equivalent citations: I(2005)BC82, 2004CRILJ3815, ILR2004KAR3658, 2004 CRI. L. J. 3815, (2004) 22 ALLINDCAS 602 (KAR), (2004) ILR (KANT) (3) 3658, (2004) 4 RECCRIR 865, (2005) 1 BANKCAS 82, (2005) 1 BANKJ 115, (2004) 4 ALLCRILR 350, (2004) 3 CIVILCOURTC 493, (2004) 5 KANT LJ 145, (2004) 4 CIVLJ 531, (2005) 1 CRIMES 89, (2004) 2 KER LJ 744, (2005) 1 BANKCLR 587
Author: S.B. Majage
Bench: S.B. Majage
ORDER S.B. Majage, J.
1. In this petition filed under Section 482 of Cr.P.C., the petitioner/accused has challenged the proceedings in C.C.No. 321/02 and process issued against him by the JMFC II Court at Hubli, on the complaint filed by the Respondent/Complainant for the offence under Section 138 of Negotiable Instruments Act. The Respondent appeared through counsel. So, heard both sides and perused the records.
2. It is the case of the Respondent/Complainant that a Cheque dated 16.7.1999 was issued for a sum of Rs. 15,000/- in connection with the liability to be discharged by the petitioner/accused but, when said cheque was tendered, it was returned with an endorsement as "Stop payment". The intimation from the bank was received on 17.1.2000. So, a legal notice dated 2.2.2000 was issued to the petitioner/accused by the Respondent/Complainant demanding the amount of cheque. Said notice was served on the petitioner/accused on 4.2.2000. Since no payment was made thereafter, complaint was filed on 23.3.2000.
3. According to the learned Counsel for the petitioner/accused, said complaint was filed after one month from the date of cause of action i.e., the period of limitation provided under Section 142(b) of the Act for filing such a complaint for the offence punishable under Section 138 of the Negotiable Instruments Act and as such, the same is barred since, at the most, the complaint should have been filed on 20.3.2000 as 19.3.2000 was holiday, but the complaint was presented on 23.3.2000 and as such, the complaint was barred by time. The learned Counsel for Respondent/Complainant does not dispute it.
4. In the case on hand, when we calculate the statutory period of one month provided in Section 142(b) of the Negotiable Instruments Act, within which a complaint should have been filed admittedly, as on 23.3.2000, the limitation to file complaint was over because the period of one month cannot be read/taken as the period of 30 days. Further, since the matter relates to the period earlier to the amendment made by Act 55 of 2002, by which, on showing sufficient cause, delay in filing complaint could be explained and requested to be condoned, that cannot be invoked by the complainant.
5. Of course, it could be argued that since the postal acknowledgement was received by the complainant on 7.2.2000, the period of 15 days provided in proviso (c) to Section 138 requires to be computed from that date and if done so, the complaint filed was within time when read with Section 142(b) of the Act.
6. For this, it may be noted that the period of 15 days provided in proviso (c) to Section 138 of the Act starts from the date of receipt of notice by the drawer of the cheque and not from the date of receipt of acknowledgement of demand notice sent by the payee or from the date of knowledge to the payee about the date of service/receipt of demand notice by the drawer. The period of 15 days provided in the said proviso is the period given to the drawer to make payment. So the said proviso can not be read or understood as giving more than 15 days time to drawer or, to take advantage by the payee to show the cause of action beyond 16th day of receipt of demand notice by the drawer. Simply because, the complainant received the acknowledgment on 7.2.2000, the period of 15 days provided in proviso (c) cannot be calculated from that date, and consequently, it could be held that complaint filed was barred by time. So, it is held that the complaint was barred by time and as such, taking cognizance of the offence and then issuing process were bad in law.
7. It may also be noted that, as per Proviso (b) to Section 138 of the Act, the notice of demand should have been issued by the complainant within 15 days from the date of receipt of the intimation from the Bank regarding return of the cheque. But, in the instant case, though the intimation from the Bank was received on 17.1.2000, the legal notice was issued on 2.2.2000, i.e., after 15 days from the date of receipt of intimation by the complainant from the Bank. It need not be said, the period of 30 days provided by amendment, which came into force from 6.2.2003 in view of Act 55 of 2002, does not come to the rescue of the complainant. So, this also shows that the complainant could not have filed complaint for the offence under Section 138 of the said Act.
8. Of course, placing reliance on the decisions of Madras High Court in the case of S. MUTHU KUMAR v. THE STATE, 1995 Cr.L.J. 350 and of Andhra Pradesh High Court in the case of M/s. RAMAN TEELS (TECH) AND PROCESS ENGINEERING-LIMITED AND ORS. v. HOWRAH INDUSTRIES, SECUNDERABAD AND ORS., 2000 Crl.L.J. 603 it was vehemently argued for the Respondent/ Complainant that as the allegations in the complaint prima facie make out a case of cheating, the Court could take cognizance of an offence punishable under Section 420 of IPC and as such, the matter be remitted to the Trial Court to take cognizance for that offence, though the complaint was barred by time so far as offence under Section 138 of Negotiable Instruments Act is concerned.
9. It is true that if the allegations in a complaint make out a case of cheating, certainly, the Court is required to look into it and take cognizance and issue process for that offence. But, in the case on hand, the requirements of Section 420 are not at all forthcoming and that is why, in the complaint, the Respondent/Complainant himself had not requested the Court to take cognizance of an offence punishable under Section 420 of IPC. The request was to take cognizance for the offence punishable under Section 138 of the Negotiable Instruments Act. Further, there is no allegation whatsoever in the complaint to attract Section 420 of IPC and as such, the decisions relied on for the Respondent/Complainant do not held him in the matter. No other point was urged for the Respondent/Complainant.
10. In the result, the petition is allowed under Section 482 of Cr.P.C., and quashed the proceedings in C.C.No. 321/02 on the file of JMFC II Court at Hubli, including the process issued against the petitioner/accused.