Madras High Court
H.M. Brothers (P.) Ltd. And Another vs R. Monsing And Sons (P.) Ltd. on 3 February, 1994
Equivalent citations: [1995]83COMPCAS626(MAD)
Author: Pratap Singh
Bench: Pratap Singh
JUDGMENT Pratap Singh, J.
1. The accused in C.C. Nos. 1684, 1685 and 3492 of 1993, on the file of the XIVth Metropolitan Magistrate, Egmore, Madras, have filed the petitions under Section 482 of the code of Criminal Procedure, 1973, to call for the records in the above cases and to quash the same.
2. The short facts are : In C.C. No. 1684 of 1993, the respondent has filed a private complaint against the petitioners for an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (which I shall hereinafter refer to as "the Act"). The allegations in it are briefly as follows :
The complainant is a company duly registered under the Companies Act, 1956. The first accused is a company duly registered under the Companies Act, 1956, represented by the second accused, who is a director of the first accused and is responsible for the day to day management and affairs of the business. The accused borrowed Rs. 10,00,000 at the rate of 36 per cent. per annum and issued a promissory note, dated September 3, 1992, for the same duly signed by him. On November 3, 1992, the second accused on behalf of the first accused issued five cheques dated November 28, 1992, December 14, 1992, December 29, 1992, December 10, 1992, and December 23, 1992, respectively, of Rs. 2,00,000 each. In the covering letter accompanying the above cheques it was stated that regarding interest, the same will be paid after the cheques are realised. On November 28, 1992, the first cheque was presented for encashment. It was returned dishonored with an endorsement "exceeds arrangement". Intimation of the dishonour was received by the complainant on December 1, 1992. The complainant contacted the accused and informed him of the dishonour of the cheque. On December 3, 1992, the second accused issued two cheques dated December 5, 1992, and December 7, 1992, respectively, for Rs. 1,00,000 each. The complainant presented the two cheques. They were, also returned dishonored with a remark "exceeds arrangement". The complainant received intimation on December 8, 1992, and December 9, 1992. On December 12, 1992, the complainant issued a telegraphic notice to accused Nos. 1 and 2 informing them of the dishonour of the cheques and calling upon them to make payments immediately. The accused have neither made any payment nor sent any reply. Hence, the complaint.
3. The allegations in C.C. No. 1685 of 1993 are as follows : The respondent has filed the complaint against the petitioners for an offence under section 138 of the Act. The allegations in it are briefly as follows : The second accused borrowed on behalf of the first accused Rs. 10,00,000 on September 3, 1992, promising to repay the same within two months and on November 3, 1992, the second accused on behalf of first accused issued five cheques for a sum of Rs. 2,00,000 each with a covering letter in which it is stated that interest will be paid later. Out of the five cheques, three cheques were presented for encashment. But they were returned with endorsement "exceeds arrangement". The intimations were received by the complaint on December 14, 1992, and December 24, 1992, respectively. On December 28, 1992, the complainant issued a telegraphic notice to the caused informing them about the dishonour of the three cheques and calling upon them to make payment immediately. After receiving the notice, the accused neither sent any reply nor made any payment. Hence the complaint.
4. In C.C. No. 3492 of 1993, the respondent in Criminal O.P. No. 9896 of 1993, has filed the private complaint against the petitioner in that case for an offence under section 138 of the Act. The allegations in it are briefly as follows :
Accused No. 1 is a company incorporated under the Companies act, 1956. The second accused was the director of the first accused and is responsible for its day to day management and affairs of the business. Accused No. 2, on behalf of accused No. 1, borrowed Rs. 10 lakhs and issued a promissory note dated September 3, 1992. Towards repayment of the above said loan, accused No. 2, on behalf of accused No. 1, issued five cheques for Rs. 2 lakhs each and gave them with a covering letter. Interest was to be paid after the cheques are realised. Out of the above five cheques, the cheque dated December 29, 1992, was presented by the complainant on that date itself. It was returned dishonored for the reason "exceeds arrangement". The complainant issued intimation of dishonour on December 30, 1992. The accused was informed of the dishonour. He asked the complainant to represent the cheque again on February 8, 1993. Once again, the cheque was dishonoured for the very same reason. The intimation of dishonour was received by the complainant on February 10, 1993. The complainant issued statutory notice dated February 17, 1993, calling upon them to pay the cheque amount. Even though the notice was received by the accused, they have not paid the cheque amount. Hence the complaint.
5. Mr. T. K. Sampath, learned counsel appearing for the petitioners, would submit that in C.C. Nos. 1684 and 1985 the telegraphic notice has been relied upon by the complainant on the ground that a telegraphic notice is not a notice within clause (b) of the proviso to section 138 of the Act. He would further submit that penal law requires strict interpretation and that the date of receipt of the notice by the accused has not been stated in the complaint and while so the reckoning of the period of 15 days from the date of service, for the purpose of payment of the cheque amount, cannot be filed in the absence of mention of date of receipt of the notice, the complaints are liable to be quashed. He would add that unless the date on which notice was served is stated, 15 days time cannot be fixed. He would further submit that in these cases sworn statements were taken on a much later date and on the date on which the sworn statements were taken, the complaints have become barred by time and the taking of cognizance of the offence by the learned Metropolitan Magistrate is not correct and on that ground also, the complaints are liable to be quashed. I have heard learned counsel appearing for the respondents, on the above aspects, and I have carefully considered the rival contentions.
6. To consider the first submission, clause (b) of the proviso to section 138 needs extraction and it reads as follows :
"138 ....... Provided that nothing contained in this section shall apply unless .........
(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."
7. On a plain reading of clause (b), it would be apparent that what is required is a notice in writing. That clause does not limit it only to a written notice by post. He can as well send a written notice by telegram. Clause (b) to the proviso to section 138, does not have any restriction with regard to the nature of notice, in writing, I am unable to accept the submission made by Mr. T. K. Sampath that a Sampath that a telegraphic notice is not a notice. Such an interpretation is not warranted by the very language of clause (b) of the proviso to section 138 of the Act.
8. I shall next take up the second submission that the date of receipt of the notice should be stated in the complaint otherwise, the complaint is liable to be quashed. To consider this submission, clause (c) of the proviso to section 138 need be extracted and it reads as follows :
138 ......... Provided that nothing contained in this section shall apply unless : .......
(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."
9. To construe the said clause (c), section 142(b) is also relevant and it reads as follows :
"142. Cognizance of offence. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) : .....
(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."
10. On a conjoint reading of clause (c) of the proviso to section 138 and section 142(b) it is clear that the complaint is to be filed within one month of the date on which the clause of action arises under clause (c) of the proviso to section 138 and that the cause of action arises on the expiry of 15 days from the date of service of the said notice. Bearing the two provisos in mind, I shall examine the complaints in these three cases. In C. C. No. 1684 of 1993, in para 8 of the complaint, it is alleged that on December 12, 1992, the complainant issued a telegraphic notice to the accused Nos. 1 and 2 informing them of dishonour of the cheque and calling upon them to make the payment immediately. It further alleged that there has been no reply from the accused nor have they made payment and that the accused Nos. 1 and 2 have committed an offence under section 138 of the Act. The complaint was filed on January 27, 1993. The period of payment of the cheque amount, from the date of receipt of notice, is 15 days. The period within which complaint should be filed is one month from the date of expiry of the said 15 days. If the date of telegram itself is taken as the date of service of notice on the accused, in this case, where the complaint was filed on January 27, 1993, it is within the above period of 15 days + one month contemplated under clause (c) of the proviso to sections 138 and 142(b) of the Act. As such, the complaint is not prima facie barred by time. That would show that it is not necessary to state the date on which the service of notice was made, if otherwise it can be seen from the allegations made in the complaint that the complaint was filed within time. In C. C. No. 1685 of 1993, the telegram was filed on December 9, 1993, and it was within 45 days. In C. C. No. 3492 of 1993, the complainant had issued a notice on February 17, 1993, and it was received by the accused on February 19, 1993, and the complaint was filed on February 25, 1993, and as such it is within time. So far as the telegrams are concerned, it is a matter of evidence to find out as to whether they have been served or not. If they are not served, on the accuse, definitely the requirements of section 138 of the Act are not satisfied and the complaints are liable to be quashed. But that can be gone into only at the time of trial when evidence will be let in this regard. On that ground, the complaints cannot be quashed at the threshold.
11. Coming to the last submission, that sworn statements in this case were taken only on a later date and by that time 30 days had already elapsed and hence these complaints were barred by time and hence they are liable to be quashed, learned counsel for the petitioners would rely upon Krishna Pillai v. T. A. Rajendran [1990] SCC (Crl.) 646. In that case, the apex court had considered the cognizance of an offence under the Child Marriage Restraint Act, 1929, after the expiry of one year from the date of the offence. Section 9 of the Child Marriage Restraint Act, 1929, provides :
"No court shall take cognizance of any offence under this Act after the expiry of one year from the date on which the offence is alleged to have been committed."
12. In that case, it was not disputed that cognizance has been taken by the court more than one year after the offence was committed. Counsel for the respondent has stated that since the complaint has been filed within a year from the date of commission of the offence, it must be taken that the court has taken cognizance on the date when the complaint was filed and in that view of the matter, there would be no limitation. The apex court has held that filing of a complaint in court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint and that since the magisterial action in that case was beyond the period of one year from the date of the commission of the offence, the Magistrate was not competent to take cognizance, in view of the bar under section 9 of the Act. Now, I shall presently refer to section 142 of the Act, which is relevant for considering the last submission in this case. It reads as follows :
"142. cognizance of offence. - 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."
13. A conjoint reading of clauses (a) and (b) of section 142, would clearly go to show that all that is required is that the complaint is made within one month of the date on which the cause of action arises and in such case cognizance can be taken by the court for an offence punishable under section 138 and so that date of recording of the sworn statement is not at all germane. Taking that view of the matter, I am clear that the taking of cognizance of the offences by the trial court is perfectly in order. The rule in Krishna Pillai v. T. A. Rajendran [1990] SCC (Crl) 646 is not applicable to an offence under section 138 of the Act.
14. Since none of the submissions made by Mr. T. K. Sampath finds acceptance with me, the inevitable result is that all these petitions will have to be dismissed and shall stand dismissed.