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1992 DIGILAW 448 (CAL)

N. C. Dey v. Raufrahim

1992-12-22

S.P.Rajkhowa

body1992
Judgment 1. BY this application filed under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for quashing the proceeding being Case No. C-1884/89 under Section 138 of the Negotiable Instruments act, 1881 as amended by the Banking, Public Financial Institutions and the negotiable Instruments Laws (Amendment) Act, 1988. 2. THE complaint petition field by the complainant/opposite party in the Court of the learned Chief Metropolitan Magistrate, Calcutta discloses the following facts the complainant is the proprietor of M/s. Alika Travels, Calcutta. In course of business a sum of Rs.20,000/- became due and payable by the accused (petitioner in this revisional application) to the complainant on account of transportation charge. The caused in discharge of the said existing liability issued an account-payee cheque bearing No. 489188 dated 6.5.1989 for the said sum of Rs.20,000/- drawn on American Express Bank Ltd. Old Court House Street Branch, Calcutta. The said cheque was presented for encashment thought the complainant's banker namely New Bank of India, Shakespeare Sarani, Calcutta after 2 months as per request of the accused. But the said cheque was returned being dishonoured by non-payment with the remark, "full cover not received" which indicates that there was no sufficient fund in the bank account of the accused maintained with the said American Express Bank Ltd. The fact of the cheque being dishonored was brought to the notice of the accused and the accused requested the complainant to present the same cheque once again the encashment and the accused assured that the said cheque would definitely be encashed on presentation this time. Accordingly, the cheque was again presented at the aforesaid Bank through the complainant's banker as aforesaid but this time also the cheque bounced and was retuned with the remark 'refer to Drawer'. Under the circumstances complainant sent a notice through his learned Advocate to the accused on 26. 8. 1989 demanding payment of the said sum of Rs. 20,000/- covered by the said cheque within 15 days from the receipt of the said notice and it was also cautioned in the said notice that in case of failure to make the payment, legal consequences would ensue. The accused duly received the said notice on 28. 8. 1989 but he did not make any payment against the said existing liability. The accused duly received the said notice on 28. 8. 1989 but he did not make any payment against the said existing liability. Under the facts and circumstances of the case, the complainant prayed before the Court to take cognizance and issue process against the accused under Section 138 of the Negotiable Instruments Act, 1881 as amended. The learned Chief Metropolitan Magistrate took cognizance and transferred the case to the Court of the learned Metropolitan Magistrate, 14th Court, Calcutta under Section 192 (1) of the Code of Criminal Procedure. Upon transfer, the learned metropolitan Magistrate posted the case to 3. 10. 1989 for examination of witnesses. 3. THIS revisional application was moved on 29.1.1992 and a learned Single judge of this Court was pleased to stay further proceedings. This Court is not informed by any of the parties to this litigation as to how far the criminal proceedings had progressed during the years 1990 and 1991. 4. MR. B. N. Sanyal, learned Counsel for the petitioner has submitted that the taking of cognizance by the learned Chief Metropolitan Magistrate is per se illegal as no offence under Section 138 of the Negotiable Instruments Act has been established from the facts stated in the petition of complaint. He has submitted that once the cheque is presented within its validity period or earlier and bounced on the ground of insufficient funds or if the arrangement exceeds, the offence is deemed to have been committed. The offence having been committed, can be made actionable in a Court of law by compliance of Clause (c) of the proviso under Section 138 of the Act, He has further submitted that there is nothing in the language of Proviso (a) of Section 142 of the Act that the cheque may be presented as many times as possible within its validity period and each time dishonour of a dishonoured cheque will give fresh cause of action or that each time and/or subsequent occasions, offence will be deemed to be committed. In support of this contention Mr. Sanyal has referred to 1990 C Cr. (Cal)145 : [vol. 1 DCTC 77], Madras Forgings and Allied Industries v. Suresh chandra. But this decision is not at all relevant. The question which arose before the Division Bench deciding this reported case was whether the Amended Act of 1988 had retrospective operation. Mr. In support of this contention Mr. Sanyal has referred to 1990 C Cr. (Cal)145 : [vol. 1 DCTC 77], Madras Forgings and Allied Industries v. Suresh chandra. But this decision is not at all relevant. The question which arose before the Division Bench deciding this reported case was whether the Amended Act of 1988 had retrospective operation. Mr. Sanyal then relied on a decision of the Kerala high Court in Kumaresan v. Ameerappa reported in 1992 (1) Crimes at page 23 : [vol. 1 DCTC 161]. In that reported case the complainant filed a complaint in the Court alleging that the accused had committed the offence under section 138 of the Act. He stated in the complaint that a cheque on Vijaya Bank for Rs.10,000/- was issued by the accused on 4. 11. 1989 in favour of the complainant and on 6. 11. 1989 the cheque was returned dishonoured by the drawee bank for the ground 'refer to Drawer'. Notice issued by the complainant was received by the accused on 23. 11. 1989. But no payment was made pursuant to the said notice. Complainant again presented the said cheque on 15. 1. 1990 before the drawee Bank and was again dishonoured. A fresh notice was issued to the accused which he received on 13.2.1990. As no payment was made by the accused which he received on 13.2.1990. As no payment was made by the accused thereafter too, the complaint was filed on 12.3.1990. The learned Magistrate took cognizance and issued process to the accused. The only ground urged by the accused/ petitioner before the High Court was that the complainant/opposite party could not have a second cause of action on the same cheque when once he had failed to institute a complaint on the strength of the Ist cause of action. A Division bench of the Kerala High Court hearing the matter upheld the contention raised on behalf of the accused/petitioner and quashed the proceedings. Mr. Sanyal has further submitted that if there be any ambiguity in the interpretation of the provisions under Chapter XVII of the Act or if these provisions are at least capable of two interpretations, the benefit of the ambiguity should be given to the accused. On this point he replied upon a decision of this Court reported in AIR 1969 calcutta 474, Sarbananda Sarkar v. State. 5. THE substance of the argument of Mr. On this point he replied upon a decision of this Court reported in AIR 1969 calcutta 474, Sarbananda Sarkar v. State. 5. THE substance of the argument of Mr. Sanyal is that the offence under Section 138 of the Act is not a continuing offence and once the complainant served the notice after the cheque being dishonoured and he did not file a complaint, the cause of action did not survive if the dishonoured cheque was again presented and dishonoured. 6. MR. Mukherjee, learned Counsel for the complainant/opposite-party has submitted that the instant case stands on a footing different from the one reported in 1992 (1) Crimes 23 . By referring to Clause (b) of Section 142, Mr. Mukherjee has submitted that the cause of action will arise only when the conditions of Clause (b) and Clause (c) under Section 138 are fulfilled. In order to entitle the payee or the holder of the cheque to initiate a criminal proceedings, he must make a demand for the payment of the amount mentioned in the cheque by giving a notice, in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid and the drawer of such cheque fails to make the payment to the payee or to the holder within 15 days of the receipt of the said notice. Thus the conditions; are; (a) when the cheque is dishonoured, the payee or holder must make a demand for payment by giving a notice which must be in writing, to the drawer of the cheque within 15 days of the receipt of information that the cheque has been dishonoured; and (b) if within the period of 15 days of the receipt of the said notice the drawer fails to make any payment, here in the instant case the cheque dated 6. 5. 1989 drawn on american Express Bank Ltd. was present for encashment through the New Bank of India and it bounced. This fact was brought to the notice of the drawer who advised the complainant to present the cheque for encashment once again. But this time also, it bounced and so a notice in writing (stress is mine) demanding payment within 15 days from the date of receipt of the notice was sent to the accused on 26. 8. This fact was brought to the notice of the drawer who advised the complainant to present the cheque for encashment once again. But this time also, it bounced and so a notice in writing (stress is mine) demanding payment within 15 days from the date of receipt of the notice was sent to the accused on 26. 8. 1989 which he received on 28. 8. 1989. During fifteen days following 28. 8. 1989 the drawer did not make the payment. The complaint was filed on 26. 9. 1989 which is within the period of one month from the date of cause of action which arose on the expiry of that period of 15 days. No cause of action arose in the earlier occasion as no notice in writing was given to the drawer. The construction of the Sections 138 and 142 are clear enough to rule out any ambiguity as to when the cause of action would arise. It arises only when a notice in writing is given within 15 days of the receipt of the information by the payee or the holder of the cheque from the bank regarding the return of the cheque as unpaid. In view of the propositions of law, I find sufficient force in the submissions of Mr. Mukerjee, and so his submission are accepted. Mr. Sanyal then submitted that the learned Metropolitan Magistrate, Calcutta has no territorial jurisdiction to try the case on the ground that the accused stays at 40, Mission Para, RS. Rahara, District 24 Paraganas (West Bengal According to Mr. Sanyal this address is not within the territorial jurisdiction of the learned Metropolitan Magistrate. This submission cannot be accepted. The cheque in question was presented at the American Express Bank Ltd. Old, Court House street Branch, Calcutta where it bounced and the said Bank is within the territorial jurisdiction of the learned Magistrate. 7. A note of caution has been sounded by the Apex Court in its various pronouncements not to take the provisions of Section 482 of the Code of Criminal procedure lightly to quash the criminal proceedings. A proceedings must come to its logical end. Section 482 is not to be used to stall the same. 8. IN the result I find no merit in this revisional application filed under Section 482 Cr. P.C. and the same is rejected. The stay order granted on 29.1.1992 is hereby vacated. A proceedings must come to its logical end. Section 482 is not to be used to stall the same. 8. IN the result I find no merit in this revisional application filed under Section 482 Cr. P.C. and the same is rejected. The stay order granted on 29.1.1992 is hereby vacated. Let a copy of this order be sent to the Court below forthwith. Appeal dismissed.