Allahabad High Court
R. & P. Export Thru' Partner Pramod Kumar ... vs State Of U.P. & Another on 29 March, 2017
Author: Abhai Kumar
Bench: Abhai Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 41 Case :- CRIMINAL REVISION No. - 3020 of 2007 Revisionist :- R. & P. Export Thru' Partner Pramod Kumar Gupta Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Rajesh Kumar Mishra,M.K. Gupta,M.N. Singh Counsel for Opposite Party :- Govt. Advocate, Kshitij Shailendra Hon'ble Abhai Kumar,J.
1. This revision has been directed against the revisional court's order dated 3.8.2007 passed by Additional Sessions Judge, Court No.14, Moradabad in Criminal Revision No.111 of 2007 (Vineet Kumar Jain vs. R.P. Export), whereby revision of the opposite party no.2 was allowed and the order passed by the trial court dated 17.2.2006 was quashed.
2. It is submitted by the learned counsel for the revisionist that the revisional court considered the complaint filed by the revisionist as time barred and thereby allowed the revision whereas the complaint filed under Section 138 of Negotiable Instrument Act, 18811 before the trial court was within time.
3. Learned counsel for the opposite party no.2 submitted that once a notice after dishonour of cheque is being sent, the cause of action will run from that date and the revisional court appropriately accepted the contention of the opposite party no.2 and the same is not liable to be interfered.
4. The only point that is raised to be decided in the matter as to when the cause of action for filing the complaint under Section 138 of the Act arose.
5. This is not disputed that the cheques were deposited by the revisionist issued by the opposite party no.2 and a notice dated 17.6.2006 was sent for the first time and same was returned with the endorsement of postman dated 26.6.2006 that the receiver was not available. Again, registered notice was sent on 1.7.2006 and the same was served upon the opposite party no.2 on 3.7.2006.
6. It is to be seen whether time will start running from the date i.e. 17.6.2006 when the notice was issued first time or by 26.6.2006 when endorsement of non availability of opposite party no.2 was endorsed by the postman or it will run from issuance of notice second time that is 1.7.2006 and consequently its service on 3.7.2006. If service is deemed sufficient on 3.7.2006, then the complaint filed under Section 138 of the Act was within time and if not so, then it is time barred.
7. The revisional court after considering several laws propounded by the Hon'ble Apex Court came to the conclusion that a notice which was issued first time will be taken into consideration and the endorsement made by the postman on 26.6.2006 is also relevant and 15 days time will start running from that date. Consequently, it was found by the revisional court that the complaint filed was time barred.
8. It is not disputed that first notice issued on 17.6.2006 was not served upon the opposite party no.2 and it was returned with the endorsement dated 26.6.2006 that receiver was not available.
9. Section 142 of the Negotiable Instrument Act, 1881 lays down the procedure for taking cognizance of offences, which is reproduced below:
"142. Cognizance of offences:
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause -of- action arises under clause (c) of the proviso to section 138;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138."
10. Proviso of Section 142 (b) of the said Act provides that cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.
11. This proviso itself provides a right to the Court to take cognizance that in case sufficient cause is being shown, then a complaint may be taken into consideration even after the prescribed period of one month.
12. This point is to be decided by the Court taking the cognizance and had opposite party no.2 appeared before the trial court and taken the point of limitation, then appropriate order ought to have been passed by the trial court after taking into consideration all the relevant factors whether first notice sent is relevant or not or whether it will be second notice that will be taken into consideration. Only after that, the revisonal court ought to have exercised its jurisdiction if such is being challenged before it.
13. In the circumstances, this Court is of the view that the revision preferred before the revisional court was premature and the revisional court ought not to have entertained the revision.
14. The revisionist was also not having any locus to prefer the revision before the revisional court. The trial court only took the cognizance of the offence and then posted the case for the next date for the statement under Section 200 Cr.P.C. The trial court could have very well disposed of the complaint case at the stage of summoning of opposite party no.1 under Section 203 Cr.P.C. in case there was any infirmity before summoning he was not having any locus to prefer a revision. On this ground also the revision preferred before the trial court was not maintainable.
15. This is not disputed that the cheque was dishonored and for the first time notice was issued to the revisionist on 17.6.2006. Last time the cheque was refused on 13.6.2006 and only after that, notice was given. When the revisionist exercised its right to send the notice of 17.6.2006, then the relevant date would be the last refusal made by the Bank and it is 13.6.2006. From 13.6.2006 the revisionist was having right to send a notice regarding the payment of dishonour cheque to the opposite party no.2 within a month. This right was exercised immediately on 17.6.2006. This registered notice returned on 26.6.2006 unserved with the endorsement by the postman that receiver was not available. Again, notice was send on 1.7.2006 and the same was served upon the revisionist on 3.7.2006. Second notice was also send within stipulated time of one month from the date of dishonour of cheque that is 13.6.2006. There is no bar for sending the notice as many times, if once a notice is send it cannot be said that the second notice cannot be send and the only restriction that can be imposed is time limitation that has been provided under Section 138 (b) of the Act.
16. It is submitted by the learned counsel for the revisionist that once a notice is send, time will be counted from that notice and second notice will be immaterial.
17. In support of his submission, learned counsel for the respondent has placed reliance on the case of Sadanandan Bhadran vs. Madhavan Sunil Kumar, AIR 1998 SC 3043, relevant portion is reproduced below:
"10. Now, the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file an complaint for its dishonour, and that too within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonour a fresh right - and not cause of action - accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of this such right under clause (b) of Section 138, 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 and the cause of action for filing the complaint will arise. Needless to say, the period of one month fro 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."
18. The ratio laid down by the Apex Court is regarding the starting point of cause of action and it has been held that payee is at liberty to present the cheque in the Bank as many times as he wishes within the validity period of cheque and once he gives a notice under Section 138 (b) of the Act, then he forfeits such right.
19. The Apex Court merely considered the point that in case the cheque is presented several times before the Bank, then how the cause of action will start.
20. No doubt, the cause of action will start immediately after notice is being received by the receiver whose cheque is being dishonoured. If a notice is being sent and it is being returned with the endorsement of the postman that the receiver is not available and in good faith a fresh notice is being issued within the time limit and it is being served upon the receiver, then time will start running from the actual receipt of the notice. There is no bar in sending the repeated notice within the time limit as stated above, so in case, if first notice is not served upon opposite party no.2 and then revisionist sends a second notice, then it cannot be said that any illegality has been caused. It would be prerogative of the revisionist, who could have filed the complaint even on the basis of first notice that was returned with the endorsement of the postman regarding non availability of receiver and he could have rushed to the Court even on the basis of endorsement of postman on the first notice. Instead, due diligence was taken by the opposite party no.2 and he again send the notice for service and then it was served. For this precaution, he cannot be punished.
21. Presumption of service is to be considered for the purposes of receipt of service to the opposite party no.2. Such presumption is not to be taken against the sender of the notice. It is upon the revisionist to conclude whether any notice which was sent, will be presumed to be served and if in his opinion, the same is not served, he is entitled to send a fresh notice within a stipulated period. In regard to this, this Court is of the view that recourse taken by the revisionist is correct one and by sending notice second time, will not be considered adversely.
22. In view of the above discussions, I come to the conclusion that the revisional court entertained the revision when it was not maintainable. Mover over, the conclusion drawn by the trial court regarding receiving of notice and consequently observing that cognizance taken by the trial court is time barred is also erroneous.
23. In the result, the revision is liable to be allowed. It is, accordingly, allowed and the impugned order dated 3.8.2007 passed by Additional Sessions Judge is hereby quashed. The trial court is directed to take further recourse in the matter.
Order Date :- 29.3.2017 Ajeet (Abhai Kumar,J.)