Delhi District Court
Muthye Vs State And Anr. 96 (2002) Dlt 718 ... vs Manohar Lal on 23 March, 2012
IN THE COURT OF SHRI ARUN KUMAR, METROPOLITAN
MAGISTRATE:DWARKA COURTS:NEW DELHI
CC NO: 2011/10
Unique Case ID No: R0486422006
Delhi Schedule Castes Financial
& Development Corporation Ltd.,
Having its office at 2, Battery Lane,
Rajpur Road, Delhi110054
(through its authorised signatory)
Shri Vikas Dhawan ...............Complainant
Versus
Manohar Lal
s/o Shri Mawasi Ram,
RZ123, Maksudabad Colony,
Najafragh, Delhi. ................Accused
Offence Complained of or proved : Under section 138 of
Negotiable Instruments
Act, 1881
Plea of the Accused : Pleaded not guilty
Date of filing : 23.08.2002
Date of Institution : 26.08.2002
DSFDC v. Manohar Lal
CC No. 2011/10
Judgment Dated 23.03.2012 Page 1 of 16
Date of reserving judgment/order : 22.03.2012
Final Order/Judgment : Acquitted
Date of pronouncement : 23.03.2012
JUDGMENT:
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:
1. Vide this judgment, I shall dispose of the present complaint u/s 138 of the Negotiable Instruments Act filed by the complainant against the accused.
2. The case of the complainant as per the complaint is that the complainant is a Government Undertaking, controlled and financed by Government of National Capital Territory of Delhi and the accused had taken and received a loan from the complainant, which was agreed to be repaid him to the complainant in installments and in order to pay installments of the loan amount and to discharge the lawful debt, issued/deposited with the complainant three cheques bearing number 623562, 623563 and 623564 dated 01.02.2002, 01.03.2002 and 02.04.2002 DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 2 of 16 respectively for amount of Rs. 9795/, Rs. 9757/ and Rs. 9719/ respectively, all drawn on Punjab National Bank, Paprawat, New Delhi, from account no. 4638. The complainant presented the aforesaid cheques for encashment/realization with its banker namely Corporation Bank, Chandni Chowk Branch, Delhi, which were sent to the banker of the accused, namely Punjab National Bank, Paprawat, New Delhi, for realisation from his account number 4638, however, all the three cheques were returned back vide cheque returning memos dated 27.06.2002 respectively, with the remarks "INSUFFICIENT FUNDS".
Consequentially upon dishonouring of the aforesaid cheques, the complainant issued and served upon the accused a requisite notice dated 11.07.2002 vide registered Post, calling upon the accused to make the payment towards the aforesaid cheques amount in question within 15 days of receipt of notice but the accused had failed to make the payment of cheques DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 3 of 16 amount within the statutory period, hence the present complaint under Section 138 was filed by the complainant through its authorised signatory Mr. Vikas Dhawan.
3. The cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 was taken and accused was summoned vide order dated 02.11.2002, whereupon the accused entered his appearance on 30.01.2003. Thereafter, on 05.12.2011, separate notice u/s 251 Cr.P.C. explaining accusations against the accused u/s 138 of the NI Act was issued to the accused, to which he did not plead guilty and claimed trial.
4. The complainant has examined Shri Krishan Kumar, AR of the complainant as CW1 in support of submissions made in the complaint. CW 1 has tendered his affidavit by way of postsummoning evidence EX.CW1/1 on behalf of the complainant and has relied upon the following documents: Ex. CW1/A : Copy of authorisation letter i.e. officer order dated 28.04.2011 in favour of the AR of the complainant alongwith the minutes of meeting DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 4 of 16 dated 26.02.2008.
Ex. CW1/B:Original Cheque No. 623562 dated 01.02.2002 for amount of Rs. 9795/drawn on Punjab National Bank, Paprawat, New Delhi, in favour of the complainant company.
Ex.CW1/C:Original Cheque No. 623563 dated 01.03.2002 for amount of Rs. 9757/drawn on Punjab National Bank, Paprawat, New Delhi, in favour of the complainant company.
Ex.CW1/D : Original Cheque No. 623564 dated 02.04.2002 for amount of Rs. 9719/drawn on Punjab National Bank, Paprawat, New Delhi, in favour of the complainant company.
Ex. CW1/E: Original Cheque return memos.
Ex. CW1/F: Copy of Legal Notice dated 11.07.2002. Mark A: Copy of proof of dispatch regarding the aforesaid legal notice.
Thereafter, on a separate statement of AR of Complainant, the complainant's evidence was closed vide order dated 22.03.2012. Statement of accused u/s 313 Cr.P.C. was also recorded on the same date and it was submitted by the accused that he does not wish to lead any evidence in his defence.
5. At joint request of the parties, final arguments in the case were also DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 5 of 16 heard on the same date.
6. It is contended by AR of the complainant that the complainant has proved beyond reasonable doubt that the accused had availed a loan for purchase of vehicle and in repayment of the installments under the aforesaid loan had issued cheques EX.CW1/B to EX.CW1/D in favour of the complainant, which were dishonoured on presentation on the grounds of insufficiency of funds in the account of the accused and despite service of the legal notice, in terms of proviso b to Section 138 of the NI Act, the accused has failed to make the payment towards cheques amount in question within the requisite period or even till date. It is, therefore, submitted by AR of the complainant that the accused may be convicted u/s 138 of the NI Act.
7. On the other hand, it is submitted by Ld. Counsel for the accused that though the complainant has failed to prove that the any legal notice was ever sent to the accused but even if it be assumed for the sake of arguments that DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 6 of 16 the demand notice dated 11.07.2002 was sent to the accused on 31.07.2002 (as per the copy of proof of dispatch mark 'A'), consequent upon receipt of alleged return memos EX.CW1/E collectively (admittedly received by the complainant on 27.06.2002), no offence u/s 138 of the NI Act is made out against the accused in view of the fact that the notice was not sent within the requisite period of fifteen days from the date of receipt of return memo from the bank, in terms of proviso (b) to Section 138 of the NI Act. Therefore, it is prayed by Ld. Counsel for the accused that the accused is entitled to be acquitted of charges u/s 138 of the NI Act.
8. Thus, in view of the aforesaid facts and circumstances, the short point which arises for determination in the present complaint is whether the present complaint is not maintainable, in as much as admittedly the legal notice has been allegedly sent by the complainant after expiry of period of 15 days from the date of receipt of intimation regarding the dishonour of DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 7 of 16 cheques in question. As per the testimony of AR of the complainant although the return memos regarding the cheques in question were received by the complainant on 27.06.2002, but the demand notice was sent to the accused on 31.07.2002 i.e. much beyond the expiry of period of fifteen days from the date of receipt of return memos from the bank. In view of the aforesaid facts, it is submitted by Ld. Counsel for the accused that in terms of proviso (b) to Section 138 of the Negotiable Instruments Act, sending of demand notice within a period of fifteen days (as it stood prior to The Negotiable Instruments (Amendment and Miscellaneous Provisions Act, 2002)) from the date of receipt of intimation regarding the dishonour of cheque is sine qua non for giving rise to cause of action for filing of the complaint under Section 138 of the NI Act, in the absence of which the present complaint is not maintainable. On the other hand, it is submitted by AR of the complainant that in view of the fact that the accused has admitted DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 8 of 16 that the cheques in question were issued by him in discharge of his debt or liability, a hypertechnical approach as suggested by Ld. Counsel for the accused should not be adopted by the court so as to defeat the legitimate claim of the complainant. At this stage, it would be pertinent to reproduce the relevant portion of Section 138 of the NI Act, as was applicable at the time of dishonor of the cheques in question i.e. prior to the amendment by The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002), which reads as follows:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 9 of 16 to one year, or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six 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 money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt 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 the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation : For the purposes of this section, `debt or other liability' means a legally enforceable debt or other liability."
9. A perusal of the aforesaid section shows that, in order to give rise to cause of action in favour of payee or holder in due course, it is essential not only to prove that the cheque issued by the drawer in discharge of any legally enforceable debt or liability was dishonoured for want of sufficiency DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 10 of 16 of funds in the bank account of accused or for other cognate reasons, but also a demand notice has been served upon the accused within fifteen days of receipt of intimation regarding dishonour of the cheque (now thirty days) and it is only in case that the drawer fails to make the payment of cheque amount within a period of fifteen days from the receipt of legal notice, that a complaint can be filed by the payee or holder in due course within a period of thirty days from the date of expiry of fifteen days after service of such notice. Moreover, although Section 142 enables the court to condone the delay in filing a complaint after the accused has failed to make the payment within fifteen days from receipt of legal notice, but there is no provision in the Negotiable Instruments Act, to condone the delay in issuing notice under proviso (b) to Section 138 of the NI Act. In my considered opinion once a particular time period has been prescribed in a statute for performance of an act, the act must be performed within such period and any delay in taking DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 11 of 16 such action cannot be condoned in the absence of any provision enabling the condonation. Moreover, the inherent powers of the court, if there is any, cannot be utilized to give rise to a cause of action where there is none. Thus the submission made by AR of the complainant, to the effect that hyper technical approach should not be adopted by the court by insisting the strict compliance of proviso (b) to Section 138 of the NI Act by the complainant in order to succeed, is in my considered opinion liable to be rejected, particularly in view of the fact that proviso (b) of Section 138 of the NI Act, being a part of penal statute, should be strictly construed and if there are two interpretations possible of the same, one which is beneficial to the accused is to be preferred by the court.
10. The aforesaid interpretation of provisions of Section 138 of the NI Act, is supported by the judgment of Hon'ble Delhi High Court in S.V. Muthye vs State And Anr. 96 (2002) DLT 718 and Kailash Engineers vs DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 12 of 16 Auto Pins (I) Ltd. 2003 (67) DRJ 782. In S.V. Muthye vs State And Anr. 96 (2002) DLT 71 it was observed by Hon'ble Delhi High Court as follows:
"8. Subsection (2) of Section 142 provides that a complaint for the offence under Section 138 has to be made within one month of the date on which cause of action arises under Clause (c) of the proviso to Section 138. To be noted that aforementioned decisions pertain to condoning the delay in filing the complaint and not the delay in serving the demand notice under Clause (b) of said Section 138. Serving of notice within 15 days of the receipt of intimation regarding dishonour of cheque by the payee and failure to make payment within 15 days of receipt of notice issued under Clause (b) of Section 138 by the drawer are to precede the filing of complaint under Section 138. In the matter of condoning delay in issuing demand notice beyond the statutory period of 15 days neither Section 473 Cr.P.C. or Section 5 of Limitation Act, 1963 would apply nor such a delay can be legally condoned. Obviously, based on said notice dated 24th September 1994, the respondent No. 2 did not have cause of action for launching the prosecution of petitioner under Section 138. Thus, being abuse of process of court the complaint deserves to be quashed under Section 482 Cr.P.C."
In Kailash Engineers vs Auto Pins (I) Ltd. 2003 (67) DRJ 782 it was observed by Hon'ble Delhi High Court:
DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 13 of 16 "5. In a later decision, in the case of S.V. Muthye v. State and Anr., , K.S. Gupta, J. has clearly taken the view that in the matter of condoning delay in issuing notice within the prescribed period of 15 days neither Section 473, Cr.P.C. nor Section 5 of Limitation Act would apply nor such a delay can be legally condoned. 1 respectfully agree with the view taken by Gupta, J.
When any Act or enactment prescribed a particular period for doing of any act, the said period cannot be extended by the Court unless the said Act or enactment contains a provision empowering the Court to extend such period in appropriate case. In an appropriate case, court can extend period of limitation for initiating any proceedings in the Court. It cannot extend the period prescribed by law for the purpose of doing some acts before the parties could take recourse to the Court of law. In the matter of serving a legal notice under Section 138(b) of the Act, the Court does not come in the picture. The drawee/holder of the cheque which has been dishonoured has to serve a notice within 15 days from the date of knowledge of dishonouring of the cheque. This notice is not to be issued or served through the instrumentality of the Court so the question of court extending the said period of 15 days does not arise. That would amount to rewriting the Statute. The Act creates mutual rights and obligations between the drawer and drawee of the cheque. When the cheque is dishonoured, the drawee has to serve legal notice within 15 days and the drawer has to pay this amount within 15 days of the receipt of demand notice. Just as the court cannot extend the time prescribed for payment of amount due by the drawer, it cannot extend the time prescribed for service of legal DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 14 of 16 notice by the drawee/holder of cheque. If the parties fail to carry out their obligations under the Act in this regard they have to suffer consequences thereof. Court does not come into picture at this stage, so the question of condoning the delay, in serving demand notice within 15 days or in payment of amount due within 15 days of service of demand notice does not arise."
11. In view of the aforesaid authoritative pronouncements, in my considered opinion, even as per its own case, the complainant has not sent the legal notice to the accused within 15 days of receipt of intimation regarding dishonour of the cheques in question from the banker of the accused and since delay in dispatch of the legal notice in terms of proviso (b) to Section 138 of the NI act cannot be condoned, the complainant has failed to make out one of the essential ingredients of the cause of action under Section 138 of the NI Act. Hence, the present complaint is liable to be dismissed and accused is entitled to be acquitted of charges under Section 138 of the Negotiable Instruments Act. Thus in view of the aforesaid discussions the accused is hereby acquitted of charges under Section 138 of DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 15 of 16 the Negotiable Instruments Act, 1881.
12. Ordered Accordingly.
Pronounced in the Open Court on this 23rd day of March, 2012. This Judgment consists of 16 signed pages.
(ARUN KUMAR) Metropolitan Magistrate:Dwarka Courts DSFDC v. Manohar Lal CC No. 2011/10 Judgment Dated 23.03.2012 Page 16 of 16