Karnataka High Court
Sri Krishna Bhupathi vs Chandana Constructions on 30 May, 2003
Equivalent citations: 2005(1)ALD(CRI)4, I(2004)BC467, ILR2003KAR4241, 2004(1)KARLJ553
Author: S.R. Bannurmath
Bench: S.R. Bannurmath
ORDER S.R. Bannurmath, J.
1. This petition is filed under Section 482 Cr.P.C., by the accused praying for quashing of the proceedings in C.C.No. 29047/ 2001 on the file of the XII Additional C.M.M. Bangalore.
The brief facts of the case are as follows:-
2. The respondents/complainant has filed a private complaint in P.C.R. No. 240/2001 (now numbered as C.C. No. 29047/2001) before the learned Magistrate, Bangalore, under Section 200 Cr.P.C., to initiate criminal action against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'Act') on the ground that the petitioner had engaged the services of the respondent for execution of civil works and in this regard, the petitioner was due to the respondent a sum of Rs. 7.5 lakhs. In this regard the petitioner has issued a cheque dated 14.11.2000 for a sum of Rs. 1,95,600/- drawn on the Indian Overseas Bank, Bangalore, towards discharge of the aforesaid liability in part. The said cheque was presented by the respondent through his banker but the same came to be returned unpaid with an endorsement 'payment stopped by the drawer'. On receipt of the said endorsement on 17.1.2001, the respondent immediately got issued a legal notice dated 20.1.2001 to the petitioner calling upon him to make good the amount involved in the dishonoured cheque within 15 days of the receipt of the notice. According to the complainant even though the petitioner received the notice on 25.1.2001 neither he made any arrangement to pay back the amount nor any reply was given to the notice and as such, as the action of the petitioner amounted to commission of an offence under Section 138 of the Act, the present complaint filed on 9.2.2001.
3. On receipt of the complaint and after recording the sworn statement of the complainant and being satisfied of existence of prima facie case, the learned Magistrate ordered for issuance of process against the petitioner. It is this action and initiation of proceedings which are sought to be quashed in the present petition.
4. The main ground of attack of the petitioner is that as the notice was received on 25.1.2001 by him as per Section 138 of the Act, the cause of action arises only on 10.2.2001 and hence filing of the complaint one day prior is premature, illegal and hence the entire proceedings are liable to be quashed. It is also contended that though the cheque was issued for a sum of Rs. 1,95,600/- in the notice issued demand is made only for a sum of Rs. 1,95,000/- which is less thanthe cheque amount and hence relying the pronouncement of the Apex Court in the case of SUMAN C.T. v. AJAY CHURIVAL, 2000 SCC (CRIMINAL 414) it is contended that the notice fails to meet the legal requirement and hence bad in law. It is also contended that infact the case of the petitioner is that he has already made payments of the amount due on 17.11.2001 itself that is much prior to the presentation of the cheque to the bank and suppressing this aspect the complainant has filed the present false case not only to get himself enriched illegally but also to harass the petitioner. On these among other grounds it is contended that the entire proceedings being illegal and contrary to the mandatory requirements under Section 138 r/w 142 of the Act, are liable to be quashed.
5. The facts especially the various dates mentioned are not much in dispute. The only question to be considered in so far as the first point is concerned is that whether lodging of the complaint on 9.2.2001 is within the time prescribed as per the complaint or whether it is premature as per the petitioner7accused. The petitioner has relied upon the pronouncement of the Apex Court in the case of SAKETH INDIA LTD. v. INDIA SECURITIES LTD., . While considering the period of limitation to be reckoned the Hon'ble Supreme Court has observed thus:-
"Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for filing the complaint under Section 138 against dishonour of cheque will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer, expires. Thus, where period of 15 days in the present case, expired on 14th October, 1995 cause of action for filing complaint would raise from 15th October, 1995 and that day (15th October) was to be excluded for counting the period of one month and consequently complaint filed on 15th November, 1995 would be within time."
6. It is contended by the petitioner that applying the principles enunciated in Sakesh India case as the notice is served on the petitioner on 25.1.2001, the same has to be excluded and after exclusion of the date (25.1.2001) the period of 15 days expires on 9.2.2001 and as such as per Section 138(c) the cause of action for the complainant arises only on 10.2.2001 and as such as admittedly the complaint is filed on 9.2.2001 itself, it is premature. However, the learned Counsel for the respondent has in this regard relied upon the later pronouncement of the Hon'ble Supreme Court in the case of the SIL IMPORT, USA v. EXIM AIDES SIL EXPORTERS, BANGALORE, 1(2000) BANKING CASE 668 to contend that date of receipt of the notice cannot be excluded and as the period of 15 days (within which payment has to be made) starts running from that day itself and on the expiry of that period the offence is complete. Hence, it is contended that as admittedly the notice is received by the accused on 25.1.2001, fifteen days period expires on 8.2.2001 and . as such filing of the complaint on the next day i.e, 9.2.2001 is well within the prescribed period. On careful consideration of both the pronouncements, is to be noted that in so far as Saketh India case is concerned, the Hon'ble Supreme Court was considering as to from what date the period of one month for filing the complaint to be reckoned and the Hon'ble Supreme Court in that case has observed that the period of one month to be calculated from the day immediately following that day on which the period of 15 days from the date of receipt of the notice by the drawer, expires. On perusal of the said pronouncement it is clear that the Hon'ble Supreme Court was considering the period of one month as required under Section 142(b) of the Act and not as to when the period of 15 days expires as is required to be calculated under Section 138 of the Act. In this regard as rightly pointed out by the learned Counsel for the respondent, the later pronouncement of the Apex Court in M/s. Sill Import is clearly attracted. In the said decision after considering the provisions of the Act as well as considering the other pronouncement in the case of K.BHASKARAN v. SANKARAN VAIDHYAN BALAN, AIR 1999 SC 3763 the Hon'ble Supreme Court has held that on the date when the notice sent reaches the drawer of the cheque, the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. In the present case admittedly the notice was received by the petitioner on 25.1.2001 and the period of 15 days starts running from that day itself and this would expire on 8.2.2001. As per Section 142 of the Act the complaint has to be filed within one month from this date (8.2.2001). Admittedly in the present case, the complaint is on 9.2.2001 which is clearly within the time limit prescribed and hence, I see no grounds to quash the proceedings on this count.
7. In so far as the ground that amount claimed in notice (Rs. 1,95,000) is less than the cheque amount (Rs. 1,95,600) and the reference to SUMAN SETHI v. AJAY K.CHURlWAL is concerned, it is to be noted that in that decision, the Hon'ble Supreme Court was considering the fact "in the notice, demand has to be made for the 'said amount' i.e., the cheque amount" and in this regard as in that case in the notice an omnibus demand was made without specifying what was due under the dishonoured cheque, the Apex Court held that 'the notice might fail to meet the legal requirement and may be regarded as bad'. Even considering this pronouncement and the principles laid down in the same, in my view, it cannot be said that the respondent has made omnibus demand without specifying what was due under the dishonored cheque. Even otherwise as the difference between the two hardly being Rs. 600/- as laid down by this Court in the case of NITYANAND v. SMT. JAMUNA PRAKASH, 2002 (1) KLJ 448 "notice cannot be viewed in an hypertechnical manner. The purpose of giving the notice is to bring it to the notice of the drawer of the cheque that the cheque he has issued has been dishonoured and to put him on guard with regard to making of payment covered by that cheque within the time prescribed so as to avoid prosecution". As noted by me as the difference of amount mentioned in the cheque and claimed under the notice being hardly Rs. 600/- in my view, the complaint cannot be thrown out only on this hypertechnical point especially exercising inherent jurisdiction under Section 482 C.P.C. and hence, the second point raised by the accused / petitioner is also devoid of merits.
8. In so far as the last point that petitioner has already made payments and the complaint has been filed only to harass the petitioner is concerned that would be subject matter of evidence to be led by both sides and satisfy the Court. This being basically question of fact to be appreciated on the basis of the evidence led, I am of the view that the same cannot be considered at this initial stage of the proceedings.
9. On considering all the aspects in their entirety especially keeping in view the well settled principles regarding exercise of inherent jurisdiction under Section 482 Cr.P.C. for quashing the proceedings at the initial stage itself, thereby thwarting the criminal proceedings at the beginning itself, in my view, all the contentions raised by the petitioner are devoid of merits and hence, the petition is liable to be rejected and the same is rejected. However it is made clear that any observations to the merits is incidental only for purpose of considering the present petition. The petitioner is at liberty to canvass all the points before the trial Court during the final arguments and the respondent will have also equal opportunity to reply the same and needless to observe that the trial Court will consider the merits of the case properly and in accordance with law.
With these observations, petition is rejected.