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1991 DIGILAW 675 (MAD)

M. D. Sugabanan v. Farook Commercial Corporation

1991-09-16

PRATAP SINGH

body1991
Judgment : 1. Theaccused in C.C.No.305 of 1991 on the file of Judicial Magistrate-I, Virudhunagar, has filed this petition under Sec.482, Crl.P.C, praying to call for the records in the aforesaid case and quash the same. 2. The respondent has file the private complaint against the petitioner, arraying him as accused for offence under Sec.138, Negotiable Instruments Act. The allegations in the complaint are briefly as follows: In the business dealings, the accused owned a sum of Rs.1,54,614. 96 to the complainant, in discharge of his liability, he issued three cheques, dated 10.3.1991, 17.3.1991 and 25.3.1991 for Rs.20,000, Rs.20,000 and Rs.25,000 respectively. The cheque, dated 17.3.1991 for Rs.20,000 was sent for collection, through Indian Bank, Virudhunagar for a second time on the request made by the accused. It was returned unpaid with memo on 22.4.1991 stating “exceeds arrangement”. The complainant received it on 2.5.1991, The cheque, dated 25.3.1991 for Rs.25,000 was sent for collection. It was retuned unpaid with memo, dated 3.5.1991 stating exceeds arrangement. The complainant received the memo on 9.5.1991. The complainant sent registered notice to the accused on 14.5.1991 intimating the fact of return of the cheque and calling upon him to arrange payment of the cheque amounts with 15 days from the date of receipt of the notice. The accused received the notice on 16.5.1991. He has not arranged for the payment of the said amount. Hence the complaint. 3. Mr.S.M.Loganathan, the learned counsel appearing for the petitioner, would contend that the notice sent by the complainant to the accused intimating him the return of the cheque as unpaid and calling upon the accused to arrange for payment of the cheque amount was received by the accused on 16.5.1991 and this complaint was filed on 26.6.1991 that more than one month has passed in between and hence the complaint is not in time. He would contend that the date of the receipt of the notice viz., 16.5.1991 must be taken as the date on which case of action arises. 4. To appreciate the contention of the learned counsel, Sec.138(c) and Sec. 142(b) of the Act need extraction. He would contend that the date of the receipt of the notice viz., 16.5.1991 must be taken as the date on which case of action arises. 4. To appreciate the contention of the learned counsel, Sec.138(c) and Sec. 142(b) of the Act need extraction. The read as follows: “138(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.” “142(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 Sec.138.” Sec.142(b) prescribes that the complaint shall be made within one month of the date on which the cause of action arises under Proviso (c) to Sec.138. Proviso (c) of Sec.138 provides that nothing contained in this section shall apply unless the drawer of such cheque fails to make the payment of the said amount to the payee within 15 days of the receipt of the said notice. If the contention of learned counsel is accepted, that the cause of action arises on the date of receipt of the notice is accepted, then the complainant can file a complaint even before the expiry of 15 days of the receipt of the notice. But that cannot be done in view of specific bar under the Proviso (c) of Sec.138 of the Act. It is a basic and fundamental proposition that the moment a cause of action arises, the affected party can seek redressal in a court of law. If it is a criminal offence, once the cause of action begins, the aggrieved party can file a complaint. It is clear from the language of Proviso (c) of Sec.138 that one cannot file a complaint for offence under Sec 138 of the Negotiable Instruments Act before the expiry of 15 days of receipt of notice by the accused. As such, I am clear, that the cause of action would arise only after the expiry of 15 days from the date of receipt of the notice. The payee can file a complaint within a month thereof. In the instant case, notice was received by the accused on 16.5.1991. Fifteen days therefrom will take us to 31.5.1991. One month thereof will take us to 30.6.1991. The payee can file a complaint within a month thereof. In the instant case, notice was received by the accused on 16.5.1991. Fifteen days therefrom will take us to 31.5.1991. One month thereof will take us to 30.6.1991. The complaint has been laid on 26.6.1991. Hence it is within time. The learned counsel relied upon the ruling reported in M/s. Kody Elcot Limited v. Down Town Hospital 1990 MLJ. (Crl.) 178 In para 9, the learned Judge has stated as follows: “…The cause of action would arise under Sec.138(c) where the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice the complaint must be laid within one month from the date.” The date referred by the learned Judge is only the date on the expiry of 15 days. He further relied upon the ruling reported in M. A. Iqbal v. Helan alias Usha [1990] 2 M.W.N. (Crl.) 49In it alsoI do not find any passage in support of the contention of the learned counsel. 5. In view of the above, the petition does not deserve admission and is dismissed.