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1999 DIGILAW 382 (KAR)

H. G. Maraddi v. Shri Gopalkrishna

1999-07-24

S.R.BANNURMATH

body1999
ORDER S.R. Bannurmath, J.—Though these three petitions are in respect of three different cheques issued by the Petitioner as common question of law and interpretation arise for consideration, the same are taken up together for consideration and the present common order is passed. 2. In these revision petitions the accused has challenged the order dated 19.5.1998 passed by the learned JMFC., Gadag, in C.C. No. 417 of 1998 ordering issue of process to the Petitioner for the offence under Section 138 of the Negotiable Instruments Act (Act for short). 3. The brief facts necessary for consideration are as follows: The Respondent herein filed a private complaint under Section 200 Code of Criminal Procedure, on 18.5.1998 before the learned Magistrate alleging commission of offence under Section 138 of the Act by the Petitioner herein. It is alleged in the complaint that in respect of certain loan transaction the Petitioner had issued three different cheques and when presented to the bank on 16.4.1998, they were returned with an endorsement dated 17.4.1998 of insufficiency of funds. Thereafter the Respondent issued three notices in respect of three cheques to the Petitioner on 27.4.1998. It is contended that though the Petitioner is local resident as per the notings of the postal authority, the notice could not be served on the Petitioner on 29.4.1998, 30.4.1998, 1.5.1998 and ultimately on 2.5.1998 as the Petitioner refused to accept the notice same were returned to the Respondent on 3.5.1998. The present complaint in all the three cases were filed on 18.5.1998. On considering the complaint and the sworn statements by the impugned order dated 4.7.1998 the learned Magistrate on finding prima facie case issued process to the Petitioner-accused. Hence the present revision petitions. 4. Sri Chandrashekar S. Patil, learned Counsel for the Petitioner-accused in all the three cases vehemently contended that apart from the merits/demerits of the case there is patent lacuna in the sense non-compliance or violation of the limitation prescribed and as such the impugned orders of issue of process are liable to be quashed. The learned Counsel, for the Petitioner relying upon the wordings in Section 138(c) of the Act contended that the cause of action for the complainant under this provision arises only after the expiry of 15th day from the date of service of notice on the Petitioner-accused. The learned Counsel, for the Petitioner relying upon the wordings in Section 138(c) of the Act contended that the cause of action for the complainant under this provision arises only after the expiry of 15th day from the date of service of notice on the Petitioner-accused. Accordingly as the postal endorsement itself shows refusal intimation is received by the Respondent on 3.5.1998, as per the aims and objects of the provision the grace period of 15 days has to be given to the Petitioner-accused so as to make good the liability and only after the expiry of clear 15 days complaint could be lodged. Relying upon the pronouncements of the Apex Court in the case of Saketh India Limited Vs. India Securities Limited, ILR 1999 Kar 2291 he contended that if third May is excluded 15 clear days would be on 18th May, 1998 and the cause of action arises only thereafter. According to him the filing of the complaint on 18th day is premature one. The learned Counsel also relied upon the pronouncement of this Court in the case of Ashok Hegde Vs. Jathin V. Attawan, (1997) CriLJ 3691, judgment of Bombay High Court in the case of Rakesh Nemkumar Porwal Vs. Narayan Dhondu Joglekar, (1994) 3 BomCR 355 and also Punjab and Haryana High Court in the case of Ashok Verma Vs. Ritesh Agro Private Limited and Anr, II (1994) CCR 1364. For the purpose of interpreting the meaning of the word 'within' he relied upon the decision of the Bombay High Court in the case of Smt. Manjuli v. Civil Judge 1970 Bom 1 to contend that when certain time is allowed for doing the act last day is also is included for performing the act. The learned Counsel contended that as per the decision of the Apex Court in the case of Saketh and the Bombay High Court Judgment in the case of Smt. Manjuli, the date of receipt of notice i.e., 3.5.1998 if excluded, the limitation of 15 days expires on 15th day i.e., on 18.5.1998 and as per the pronouncement of the Bombay High Court in the case of Smt. Manjuli's case even that date of 18th has to be excluded and as such according to the learned Counsel the cause of action starts from 19th onwards. If that is so, filing of the complaint on 18th May, 1998 according to him is premature one and the proceedings are liable to be quashed on this ground alone. 5. On the other hand Sri N.P. Singri, learned Counsel for the Respondent-complainant in all the three cases contended that there is no dispute as to the proposition putforth by the learned Counsel for the Petitioner but there is wrong understanding of the date of the receipt of notice by the Petitioner according to him. It is contended that nodoubt the cover containing the notice was returned back to the complainant on 3.6.1998 but that by itself is not a date of receipt of the notice by the accused. As the records were secured for this purpose from the very document itself the learned Counsel pointed out that though the Respondent had issued notices on 27.4.1998 and as per the postal endorsement of the authority they tried to deliver the same to the Petitioner on 29.4.1998, 30.4.1998 and 1.5.1998 but could not be served and only on the last date mentioned in the endorsement i.e., 2.5.1998 the same has been refused and hence returned to the sendor and received by the Respondent on 3.5.1998. Hence it is contended that even accepting the principles laid down by the various Courts including the Hon'ble Supreme Court and Bombay High Court the period of 15 days according to the learned Counsel for the Respondent starts from 2nd May, 1998 and ends with 17.5.1998. As such filing of the present complaint on 18.5.1998 on dot cannot be said to premature one. 6. It is to be noted that for the purpose of interpreting provisions under Sections 138 and 142 of the Act, one has to keep in mind the aims and objects of the Act. These provisions have been introduced in the act as penal provisions only to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Despite availability of civil remedy for filing suit for recovery of the amount including damages, Section 138 of the Act intends to prevent dishonesty on the part of the drawer of the negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and thereby induce the payee or holder in the course to act upon such cheque against insufficiency of funds. Section 138 of the Act draw presumption that one commits the offence if he issues the cheque dishonestly. Once such a cheque against insufficient fund has been drawn and issued to the payee and the payee has presented the cheque and the same is returned for insufficiency though it is a civil liability the same gets converted to criminal/penal offence only if it is shown the act of dishonesty on the part of the drawer. As transacting on issue of cheques is common in business community a safeguard method has been introduced under the provisions of Sub-clauses (b) and (c) of Section 138 of the Act. Immediately after return of cheque with the endorsement from the bank of dishonouring, it is mandatorily required that the payee or holder in due course must issue a notice in writing to the drawer of the cheque within 15 days of the receipt of the dishonour of cheque from the bank. Further safe guard is by way of giving 15 days grace time to the drawee to either make good the amount under the cheque by depositing the same in the bank or to pay directly and only after the expiry of the said 15 days if the drawee fails to comply with Section 138(c) gives rise to cause of action. It is undisputed and undeniable that refusal of notice is akin to receipt of notice. The pronouncements relied upon by the learned Counsel for the Petitioner are all in respect of cases where the complainant did not wait for the expiry of 15 days from the date of receipt of notice and in almost all these cases the complaint is filed within 7 to 10 days of issue of legal notice. But the facts as in these present cases are some what distinguishable. Here if the date of receipt is 2.5.1998 excluding this, the cause of action arises on both. As contended by the Respondent and if the refusal is on 3.5.1998 as per Petitioner cause of action would arise on 19.5.1998. The exact date of refusal would be subject of further proof in the trial. Here if the date of receipt is 2.5.1998 excluding this, the cause of action arises on both. As contended by the Respondent and if the refusal is on 3.5.1998 as per Petitioner cause of action would arise on 19.5.1998. The exact date of refusal would be subject of further proof in the trial. At present for the purpose of present petitions as it can be made out that the last endorsement of the postal authority is on 2.5.1998 and the next date of return is 3.5.1998 in my view the limitation starts from 2.5.1998 and then the complaint filed on 18.5.1998 cannot be said to be premature. But again this is only on the basis of the arguments advanced and the available material. It is only during the trial, the Court has to assess from the evidence what exactly is the date of denial or refusal of the notice through proper evidence to be adduced by the Respondent by examination of concerned postal authorities. Since this is a border line case, in my view, it would be premature on my part to decide the question in these petitions. As noted it is for the Respondent to establish during the trial the date of receipt/refusal of the notice and then the trial Court has to calculate the 15 days time and point of arising of cause of action from that day onwards as laid down by the Hon'ble Supreme Court in Saketh India's case. 7. As such I do not see any rason to interfere at this stage with the impugned orders of issue of process. Petitions are disposed of with the above observations.