Andhra HC (Pre-Telangana)
Mandhadi Ramachandra Reddy vs Gopumareddy Ram Reddy And Anr. on 27 June, 1997
Equivalent citations: 1997(2)ALD(CRI)189
Author: A.S. Bhate
Bench: Avinash Somakant Bhate
JUDGMENT A.S. Bhate, J.
1. The petitioner was accused in C.C. No. 80 of 1995 in the court of the learned judicial Magistrate of the First Class at Suryapet for the alleged offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"). Respondent No. 1 was the complainant. As per the allegations a cheque bearing No. 511253, dated April 30, 1994 was issued by the petitioner towards liability due to previous transaction with respondent No. 1. Respondent No. 1 received the said cheque and presented it at the Suryapet branch itself on May 16, 1994. The said cheque was returned for insufficiency of funds in the account of the petitioner. Thereafter, respondent No. 1 re-presented the said cheque after meeting with the petitioner. The said representation of the cheque was on October 6, 1994. The cheque was again returned for want of funds in the account of the petitioner. This was on October 25, 1994. It may be stated that thereafter there was no further presentation of the cheque to the bank. Respondent No. 1 then issued a notice on October 27, 1994 as required by section 138 of the Act. The said notice was returned unserved with an endorsement that the petitioner was not found on the address. The last endorsement on the envelope was dated November 12, 1994. Thus attempts were made to serve the said notice on the petitioner till that date as per the endorsement on the envelop. After the ultimate endorsement on November 12, 1994, the notice was returned to the complainant on November 16, 1994. Respondent No. 1 then filed a complaint for the alleged offence under section 138 of the Act on January 24, 1995.
2. Learned counsel for the petitioner challenges the taking of cognizance by the learned Magistrate in view of this factual position. He contends that the provisions of section 142 of the Act clearly bar the learned Magistrate from taking cognizance of the said complaint, as the complaint was not filed within time as required by section 142(b) of the Act. There is considerable force in the argument advanced by learned counsel. As is apparent from the facts stated above, in fact the notice was never actually served as such, on the petitioner. Unless the notice is served or deemed to have been served on the accused, no cause of action will arise in view of the fact that section 138(c) of the Act says that the drawer of the cheque is entitled to make payment of the money to the payee or to the holder in due course of the cheque within 15 days from the date of receipt of the notice and, if he makes such payment, no cause of action will arise for initiating any prosecution. Therefore, receipt of the notice by the accused is a sine qua non for initiating a prosecution against the accused. Learned counsel for the petitioner, however, says that in view of the decisions of this court in previous cases if a notice is sent to a proper address even if it is returned on the ground that the accused was not found on the said address, it will be deemed to have been served on the addressee. Therefore, he does not wish to press the point that the notice was not served on the petitioner. His contention is that assuming that the notice was served on the petitioner on November 12, 1994, which was the last date on which the endorsement was made by the postman on the envelop stating that the petitioner was not available at the address, still then in view of section 142(b) of the Act, which runs as follows :
"Section 142. (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso of section 138;"
3. The court was barred from taking cognizance of the case. If section 138 and section 142 of the Act are read together, it is apparent that the drawer of the cheque is first entitled to 15 days' time, for making payment of the cheque which has been dishonoured, from the date of receipt of the notice issued by complainant. Under section 142(b) of the Act, a complaint has to be filed within one month of the date on which the cause of action arises under section 138 of the Act. The cause of action arises only after expiry of 15 days from the service of notice on the accused i.e., drawer of the cheque. Therefore, the complaint has to be lodged within one month from the date on which the 15 days expire from the date of service of the notice. In that view of the matter, the complaint has to be lodged within 45 days from the date of service of the notice upon the drawer of the cheque. In the instant case as the notice was deemed to have been served on November 12, 1994, it is apparent that a complaint ought to have been lodged within 45 days thereafter i.e. on or before December 27, 1994. However, the complaint in the instant case has in fact been filed on January 24, 1995, and is therefore, clearly beyond the period which is prescribed under section 142(b) of the Act. In terms of the said section, the court is barred from taking cognizance once the period expires. It has to be remembered that the period prescribed is not the period of limitation as such but, is a condition precedent as such and, that period cannot be extended by any means. If the condition is not fulfilled, the court is barred from taking cognizance. The delay cannot be condoned under any provision of law.
4. It appears that the complainant had sent another notice on October 12, 1994, even though the first notice was returned. The second notice dated December 12, 1994, was returned on December 24, 1994, with the same endorsement. There was no justification for sending the second notice. It was apparent that it was sent only as if to create a fresh cause of action. This was impermissible. The period within which a notice is required to be issued by the complainant is stipulated under section 138 of the Act itself and the said period is 15 days from the date of receipt of information that the cheque has been returned in fact. Therefore, there was no justification for sending any notice on December 12, 1994 which was even otherwise barred by the period prescribed in section 138 of the Act.
5. I think that the Legislature will have to look into the aspect in respect of the cases wherein notices have been returned unserved on the ground that the drawer of the cheque was not found at the address or, for any other reason without being served. This is because it may happen that by some contrivance or other such endorsement can be got managed. Whatever that may be the question does not arise in the instant case, because the petitioner has not raised the point that the notice was not served on him.
6. For the reasons stated aforesaid, I have no doubt whatsoever that taking of cognizance by the Magistrate was bad in law once the period of 45 days expired from the date on which the notice was deemed to have been served on the petitioner. The petition, therefore, deserves to be allowed. The prosecution against the petitioner in C.C. No. 80 of 1995 on the file of the learned Judicial Magistrate of First Class, Suryapet, is quashed as the Magistrate was not empowered to take cognizance of the offence alleged.
7. Criminal Petition No. 2659 of 1996 is accordingly allowed.