Jharkhand High Court
Bhanu Prakash Singh vs State Of Jharkhand & Anr on 26 April, 2012
Author: H.C.Mishra
Bench: H.C.Mishra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (Cr.). No.436 of 2009
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Bhanu Prakash Singh .... Petitioner
-Versus-
The State of Jharkhand & Anr. ..... Respondents
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CORAM : HON'BLE MR. JUSTICE H.C.MISHRA
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For the Petitioner : M/s.R.S.Mazumdar, Advocate.
& Mr.Kaushik Sarkhel, Advocate.
For the State : G.P.-IV.
For the Respondent No.2 : None.
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3/ 26.04.2012Heard the leaned counsel for the petitioner and the learned counsel for the State. No one appeared for the complainant respondent No.2 in spite of repeated calls even though he has appeared through advocate upon notice.
2. The petitioner has filed this writ application for quashing the order dated 24.5.2007 passed by Shri Sirish Dutta Tripathy, learned Judicial Magistrate 1st class, Bokaro, in C.P. Case No. 4 of 2006, whereby, after an enquiry in the said complaint case, the court below has found that prima facie case under Section 138 of the Negotiable Instruments Act (herein after referred to as the 'N.I. Act'), is made out against the petitioner and has directed for issuance of process against the petitioner.
3. The complaint petition filed by the complainant respondent No.2 has been brought on record as Annexure 1 to this writ application, which shows that the accused petitioner had given one post dated cheque for rupees fifteen lakhs to the complainant in lieu of some loan given by the complainant, with the assurance that the loan amount would be returned back positively by the month of June' 2005. As the money was not returned back to the complainant 2 by the month of June 2005, the complainant deposited the cheque in the bank which bounced. It is stated that thereafter, the complainant gave a legal notice to the accused and upon getting the notice, the accused met the complainant and assured him that the loan would be returned back to the complainant by 11th November 2005. Even after this assurance, when the money was not returned, the complainant again deposited the cheque in the bank on 14.11.2005 but the cheque was again bounced and again legal notice was given by the complainant, but the cheque amount was not paid back to the complainant. With these allegations, the complaint petition was filed in the Court of Chief Judicial Magistrate, Bokaro on 4.1.2006, which was registered as C.P. Case No. 4 of 2006. It appears that after enquiry in the complaint petition, the Court below by order dated 24.5.2007 has found the case prima facie true against the petitioner and has directed for issuance of process against the petitioner.
4. Learned counsel for the petitioner has submitted that the institution of the complaint case against the petitioner and the subsequent order dated 24.5.2007 passed therein, are barred by limitation, inasmuch as, Section 142 of the N.I Act clearly prescribes that no Court shall take cognizance of the offence punishable under Section 138 of the N.I. Act unless the 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 of the N.I. Act, which provides that Section 138 of the N.I. Act shall apply only if the drawer of the cheque fails to make the payment of the cheque amount within 15 days of receipt of the legal notice. Leaned counsel accordingly, submitted that if within the fifteen days of the service of legal notice the amount is not paid back by the drawer of the cheque, the complaint is to be filed within one month thereafter and if the 3 complaint is filed after the expiry of the period of one month thereafter, the cognizance of the offence is clearly barred under Section 142 of the N.I Act.
5. Learned counsel has pointed out from the complaint petition, that the complainant had firstly deposited the cheque after the month of June 2005 and when the cheque was bounced, he gave the legal notice to the accused petitioner. It also finds mentioned in the complaint petition that the petitioner upon getting notice met the complainant prior to 11th November 2005, assuring him that by 11th November 2005 the amount would be paid to the complainant. Learned counsel accordingly, submitted that it is thus clear that the petitioner had received the notice prior to 11th November 2005, still the complaint was filed on 4.1.2006 i.e. beyond the period of one month thereafter, and even then the cognizance has been taken by the Court below, without recording its satisfaction about existence of sufficient cause for not making the complaint within the period of limitation, which is absolutely illegal.
6. Learned counsel has drawn the attention of the Court towards the decision of the Supreme Court of India in the case of Prem Chand Vijay Kumar Vs. Yashpal Singh & Anr., reported in 2005 (4) SCC 417, wherein, the Supreme Court has dealt with the case of successive presentation of the cheque in the bank and has laid down the law as follows :-
**** **** **** "8. Clause (a) of the proviso to Section 138 does not put any embargo upon the payee to successively present a dishonored cheuqe during the period of its validity. This apart, in the course of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after some time, on his own volition or at the request of the drawer, in expectation that it would be encashed. The primary interest of the payee is to get his 4 money and not prosecution of the drawer, recourse to which, normally, is taken out of compulsion and not choice. On each presentation of the cheque and its dishonor, a fresh right - and not a cause of action--accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his 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.
9. But once he gives a notice under clause (b) of Section 138 , he forfeits such right as in case of failure of the drawer to pay the money within the stipulated time, he would be liable for offence and the cause of action for filing the complaint will arise.
10. In a generic and wide sense as in Section 20 of the Civil Procedure Code, 1908 (in short "CPC) "cause of action" means every fact which it is necessary to establish to support a right or obtain a judgment. Viewed in that context, the following facts are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Act:
(a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonored;
(b) that the cheque was presented within the prescribed period;
(c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and
(d) that the drawer failed to make the payment within 15 days of the receipt of the notice.
Proceeding on the basis of the generic meaning of the term "cause of action", certainly each of the above facts would constitute a part of the cause of action but clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. A combined reading of Sections 138 and 142 makes it clear that cause of action is to be reckoned accordingly. The 5 combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142 (b) arises- and can arise- only once.
11. The period of one month for 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." (Emphasis supplied).
7. Learned counsel accordingly, submitted that in view of the law laid down by the Hon'ble Supreme Court of India in the case of Prem Chand Vijay Kumar (supra), even though it is alleged in the complaint that the cheuqe was again deposited in the bank by the complainant on 14.11.2005 which was again bounced, but that would hardly make any difference, rather the limitation shall start running once the legal notice was given to the petitioner after bouncing of the cheque for the first time, for which, admittedly the notice was given to the petitioner prior to the month of November 2005. Learned counsel accordingly, submitted that the institution of the complaint case against the petitioner on 4.1.2006, as also the order dated 24.5.2007 passed therein, are absolutely illegal and wholly without jurisdiction and the same cannot be sustained in the eyes of law and it is a fit case in which the criminal proceeding against the petitioner should be quashed.
8. Learned counsel for the State, on the other hand, supported the impugned order and has submitted that it was under the assurance of the petitioner himself that the cheque was re-submitted in the bank on 14th November 2005 which bounced for the second time and thereafter, again legal notice was given to the petitioner and the limitation shall start running from the date of the second notice. Learned counsel accordingly, submitted that there is no illegality in the impugned order passed by the Court below and the same cannot be interfered with at this stage.
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9. After having heard the learned counsels for both the sides and upon going through the record, I find that it is specifically admitted in the complaint petition that the complainant had given the legal notice to the petitioner soon after the cheque was bounced upon being deposited in the bank after the month of June 2005. It is also stated in the complaint petition itself that the petitioner received the notice and he met the complainant prior to 11th November 2005 and assured him that all the dues would be cleared by 11th Of November 2005. In that view of the matter and in view of the law laid down by the Apex Court in the case of Prem Chand Vijay Kumar (supra), there can be no doubt that the limitation shall start running after the expiry of fifteen days on receipt of the first notice by the accused petitioner and the complaint petition had to be filed within one month thereafter. That having not been done, the Court below had absolutely no jurisdiction to take cognizance of the offence without being satisfied by the complainant that he had sufficient cause for not making the complaint within such period. The impugned order clearly shows that no such satisfaction has been recorded therein and the court below has mechanically found the prima facie case against the petitioner and has directed for issuance of summons against him. Even in the complaint petition there is no explanation for not making the complaint within the period of limitation, rather it has been filed as if assuming, that the period of limitation shall start running from the date of the second notice.
10. In view of the aforementioned discussions, I am of the considered view that the Court below has passed the impugned order in a mechanical manner, without taking into consideration the aspect of limitation under Section 142 of the N.I Act. The impugned order is therefore, absolutely illegal and wholly without jurisdiction and the same cannot be sustained in the eyes 7 of law. As such, it is a fit case for exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India for quashing the criminal case pending against the petitioner.
11. Accordingly, the entire proceeding in C.P. Case No. 4 of 2006, then pending in the Court of Shri Sirish Dutta Tripathy, learned Judicial Magistrate 1st class, Bokaro, including the impugned order dated 24.5.2007 passed therein are, hereby, quashed. This writ application is, accordingly, allowed.
(H.C.Mishra, J.) B.S/