Smt. Rikta Pal Sarkar vs Sri Milan Pal on 9 August, 2017

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Tripura High Court

Smt. Rikta Pal Sarkar vs Sri Milan Pal on 9 August, 2017

Sri Milan Pal son of late Suresh Chandra Pal, resident of Ashram Para ( Near Belonia P.S.), P.O. & P.S.- Belonia, District- South Tripura ............ Respondent BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the appellant : Mr. D. Bhattacharji, Advocate For the respondent : Mr. P.K. Biswas, Senior Advocate Mr. P. Majumder, Advocate.

Date of delivery of : 09.08.2017 Judgment and order Whether fit for reporting : YES Judgment and Order (Oral) Heard Mr. D. Bhattacharji, learned counsel appearing for the petitioner as well as Mr. P.K. Biswas, learned senior counsel, assisted by P. Majumder, learned counsel for the respondent.

2. This petition has been filed under Section 397 read with Section 401 of Code of Criminal Procedure [the Cr.P.C, in short] challenging the order dated 20.03.2017 passed in Criminal Page 1 of 8 Crl Rev.P. No.33 of 2017 Revision 13 of 2016 by the Sessions Judge, South Tripura, Belonia affirming the order dated 20.07.2016 passed in NI 11 of 2016 by the Chief Judicial Magistrate, South Tripura, Belonia.

3. The preliminary objection raised by Mr. Biswas, learned senior counsel is that this is the second revision petition and that cannot be maintained in terms of sub-Section 3 of Section 397 of the Cr.P.C which provides that if an application under section 397(1) of the Cr.P.C. is preferred and decided either in the High Court or in the Sessions Court, no further application by the same person shall be entertained by either of the Courts as stated. Mr. Biswas, learned senior counsel is no doubt correct when he has contended that in view of the said restriction, no application under Section 397 read with Section 401 can be maintained by the same petitioner against the same order.

4. This Court after hearing the parties at length has noticed that substantial failure of justice has been occasioned by the impugned order and as such for ends of the justice, this Court is converting this petition into a petition filed under Section 482 of the Cr.P.C for exercising the inherent power to do the justice.

5. The grievance of the petitioner is that she filed one complaint under Section 138 of Negotiable Instruments Act [N.I. Act] with an application for condoning the delay of 232 days in terms of proviso to Section 142(b) which prescribes that the cognizance of a complaint may be taken by the Court after the prescribed period of limitation, if the complainant satisfied the Court that he had sufficient cause for not making a complaint within such period.

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6. The brief fact which is relevant is that the respondent issued a cheque dated 04.09.2015 in favour of one Sankar Prasad Sarkar alias Sankar Sarkar. Immediately after receipt of the said cheque, Sankar Prasad Sarkar alias Sankar Sarkar expired on 10.04.2016. Thereafter, the petitioner, wife of Sankar Prasad Sarkar alias Sankar Sarkar filed the complaint being the holder in due course after complying the requirement to file such complaint but the complaint could not be filed within 30 days from the date of making payment in terms of the notice as issued under Section 138(b) of Negotiable Instrument Act (the N.I. Act, in short). The time stipulated for the payment was 15 days in the notice in conformity to the statute but since the respondent did not pay the amount of the cheque, the petitioner instituted the complaint with a separate petition explaining why the delay had occurred in filing the complaint.

7. Without taking cognizance, the Chief Judicial Magistrate, Belonia by his order dated 20.07.2016 passed in the complaint proceeding being case No. NI 11 of 2016 dismissed the complaint as not maintainable. The relevant part of the said order dated 20.07.2016 is reproduced hereunder-

"Now the complainant has filed the complaint on the basis of dishonour of cheque on the capacity of the wife/legal heirs of Sankar Prasd Sarkar.

The complainant has filed a separate petition for condonation of delay of 232 days U/S 5 of the Limitation Act read with Section 142(b) of N.I. Act for filing the complaint petiton.

The first of all a question is arising as to whether the complaint is filed by the proper complainant.

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Section 142 of the N.I. Act reads as follows "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.

[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period if the complainant satisfied the Court that he had sufficient cause for not making a complaint within such period] Section 7 of the Act defined a payee as follows- 'payee'- The person named in the instrument to whom or to whose order the money is by the instrument directed to be paid, is called the 'payee'.

Section 9 of the Act defines the 'holder is due course' as follows 'Holder is due course' means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order, before the amount mentioned in it became payable and without having sufficient cause to believe that any defect existed in the title of the person from whom the derived his title.

Therefore, it becomes very clear that a complaint U/S 138 of N.I. Act is to be filed by a proper complainant i.e. either a payee or a holder in due course of the cheque and in case of Corporation and Companies such complaint may also be filed by the person authorized by such companies or corporation etc. A complaint may also be filed on behalf of the payee or the holder in due course by a Power of Attorney but in that case a person can not file complaint in his own name but has to file it on behalf of the payee or holder in due course of the cheque.

Section 5 of the Limitation Act does not have any applicability for condonation of delay in filing the complaint U/S 138 of N.I Act.

Section 142 of the N.I. Act is a self contained provision. The Hon'ble Supreme Court in a judgment reported in AIR 2011 SC 1588, in regard to the locus standi to file complaint U/S 142 of the Page 4 of 8 Crl Rev.P. No.33 of 2017 N.I Act stated that a person can maintain a complaint provided he is either a payee or a holder in due course of cheque.

In the instant case Smt. Rikta Paul (Sarkar) is neither a payee nor a holder in due course of cheque but she is a legal heir being wife of the actual holder in due course of cheque Sankar Prasad Sarkar.

Therefore the complaint is not maintainable being filed by improper person."

8. The basis of dismissing the complaint is therefore the petitioner is not a proper person to institute the complaint under Section 138 of the N.I. Act.

Being aggrieved by that order dated 20.07.2016 petitioner preferred a criminal revision petition being Crl. Rev. 13 of 2016 in the Court of the Sessions Judge, South Tripura, Belonia. By the order dated 27.03.2017, the Sessions Judge affirmed the said order dated 20.07.2016. The relevant part of the judgment is reproduced for purpose of reference-

"[7] In the case at hand, the admitted position is that, the complainant Smt. Rikta Pal Sarkar is neither payee nor holder in due course as defined in section 7 and 9 of the N.I. Act respectively. Therefore, not competent to file the complaint. Meaning thereby, in criminal court the complainant has no remedy."

9. Being further aggrieved, the petitioner has approached this Court. Mr. D. Bhattacharji, learned counsel has vehemently submitted that both the order dated 20.07.2016 and the order dated 27.03.2016 are outcome of interpretation which is not harmonious to the scheme of the N.I. Act. Section 138 has provided the substantive provision when the complaint can be filed for dishonour of cheque for insufficiency of fund in discharge of the Page 5 of 8 Crl Rev.P. No.33 of 2017 liability. While describing the person having competence to file the complaint, Section 138(b) of N.I. Act provides that the 'payee' or ' the holder in due course of the cheque', as the case may be, may make the demand in the first place for payment of the amount of money as mentioned in the cheque, by giving a notice in writing, to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;and if 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 15 days of the receipt of the said notice, the complaint can be filed and cognizance may be taken of the offence under Section 142 if the requirement as laid down under Section 138 has been complied by the payee or the holder in due course of the cheque.

10. By the impugned judgment which has affirmed the order dated 20.07.2016, it has been held that the petitioner is not the holder in due course of the cheque as defined in Section 7 and 9 of the N.I. Act. Section 9 of the N.I. Act defines the holder in due course in the following terms -

" 9. "Holder in due course' 'Holder in due course' means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or endorsee thereof, if [payable to order], before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title."

11. In Miland Shripad Chandurkaur v. Kalim M. Khan and another reported in (2011) 4 SCC 275, the apex court has clearly observed that a person can maintain a compliant provided he is either a payee or a holder in due course. The said decision is Page 6 of 8 Crl Rev.P. No.33 of 2017 not relevant for any other purpose. Mr. Bhattacharji, learned counsel has referred a decision of the larger bench of the apex court in A.C. Narayanan Vs. State of Maharashtra and another etc., reported in (2014) 11 SCC 790 when determining the reference it has been unambiguously held as under:

"As noticed hereinabove, though Janki Vashdeo Bhojwani relates to powers of power-of- attorney holder under CPC but it was concluded therein that a plaint by a power-of- attorney holder on behalf of the original plaintiff is maintainable provided he has personal knowledge of the transaction in question. In a way, It is an exception to a well- settled position that criminal law can be put in motion by anyone (vide Vishwa Mitter) and under the statute, one stranger to transaction in question, namely, legal heir, etc, can also carry forward the pending criminal complaint or initiate the criminal action if the original complainant dies (vide Ashwin Nanubhai Vyas v. State of Maharashtra).Keeping in mind various situations like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the court in order to prove the complaint, it is permissible for the power-

of-attorney holder or for the legal representative(s) to file a complaint and/or continue with the pending criminal complaint for and on behalf of payee or holder in due course. However, it is expected that such power-of-attorney holder or legal representative(s) should have knowledge about the transaction in question so as to be able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in due course, is unable to sign, appear or depose as complainant due to abovequoted reasons, Keeping these aspects in mind, in M.M.T.C., this Court had taken the view that if complaint is filed for and on behalf of payee or holder in due course, that is good enough compliance with Section 142 of the NI Act"

12. Mr. P.K. Biswas, learned senior counsel appearing for the respondents has fairly submitted that A.C. Narayanan (supra) has removed confusion about the interpretation of 'holder Page 7 of 8 Crl Rev.P. No.33 of 2017 in due course of cheque' as appeared in Section 138 and 142 of the N.I. Act. It has been impliedly held that the legal representative of the payee of the dishonoured cheque would fall within definition and meaning of 'holder in due course'

13. The petitioner being the legal heir is therefore the holder in due course of the cheque and as such a complaint can be entitled to be treated as maintained by the petitioner but whether the delay as occurred in filing the compliant would be condoned or not, would be decided by Chief Judicial Magistrate in as much as under the proviso to Section 142(b) of the N.I. Act, it is requite that the explanation must satisfy the Magistrate to get the delay condoned.

14. Having observed thus, the impugned order dated 27.03.2017 delivered in Criminal Revision 13 of 2016 is set aside and as consequent thereupon, the order dated 20.07.2016 passed by the Chief Judicial Magistrate, South Tripura, Belonia stands quashed. The case is remitted to the Chief Judicial Magistrate to act in terms of this order In the result this petition stands allowed.

JUDGE Suhanjit Page 8 of 8 Crl Rev.P. No.33 of 2017

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