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2000 DIGILAW 270 (HP)

SATI RATTNAM ARVINDAN v. KASTURI LAL

2000-10-05

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—The present petition has been made by the petitioner, Mrs. Sati Rattnam Arvindan, under Section 482, Code of Criminal Procedure, read with Article 227 of the Constitution of India, for quashing of the complaint, being No. 340-1/99 pending in the Court of Chief Judicial Magistrate, Mandi, filed by the respondent against the petitioner for her prosecution for the offence under Section 138, Negotiable Instruments Act, 1881 (for short: the Act). 2. Briefly stated, the facts giving rise to the present petition are these. The respondent, a resident of Mandi, is a Senior Executive of Messrs. Golden Forests (India) Ltd., whose office is also located at Mandi. In the year 1997 the petitioner was the Development Advisor of the said company from Gujarat and as such, was known to the respondent. Some land was required for the company at Baroda (Gujarat). The petitioner promised to manage for such land and agreed to purchase the same in the name of the company. For the purpose of purchase of such land a sum of Rs. 6,50,000 was sent to the petitioner on 28.5.1997 vide a bank draft. The bank draft was duly encashed by the petitioner. However, she failed to purchase the land in the name of the company as undertaken by her. On repeated demands, the petitioner remitted the amount of Rs. 6,50,000 to the respondent by way of a post dated cheque dated 2.5.1999 drawn in favour of the respondent and on Central Bank of India, Nizampura (Baroda) in respect of her account No. 14244. This cheque was sent in discharge of her liability in respect of the amount received by her earlier. The cheque was deposited by the respondent on 31.5.1999 with his bankers, namely, Union Bank of India, Mandi, for collection. The cheque on having been presented at Central Bank of India, Nizampura by the bankers of the respondent vide memo dated 9.6.1999 was returned as dishonoured on the ground that the petitioner had closed her account. The memo dated 9.6.1999 returning the cheque as having been dishonoured was received by the respondent on 15.6.1999. The respondent, thereafter, sent a notice dated 22.6.1999 through registered A.D. cover as well as under certificate of posting, calling upon the petitioner to pay the amount of the cheque within 15 days from the receipt of the notice. The memo dated 9.6.1999 returning the cheque as having been dishonoured was received by the respondent on 15.6.1999. The respondent, thereafter, sent a notice dated 22.6.1999 through registered A.D. cover as well as under certificate of posting, calling upon the petitioner to pay the amount of the cheque within 15 days from the receipt of the notice. A copy of the notice was also sent to the petitioner through courier. The petitioner, however, refused to accept the notice sent to her through courier. The notice sent to the petitioner under registered cover was served on her on 1.7.1999. Since the petitioner failed to pay the amount within the stipulated period of fifteen days, a complaint was filed against her before the Chief Judicial Magistrate on 9.8.1999 for her prosecution for the offence under Section 138 of the Act. 3. In response to the notice issued to her, the petitioner put in appearance before the learned Magistrate on 20.5.2000. 4. By virtue of the present petition, the petitioner is seeking the quashing of the complaint filed against her, inter alia, on the following grounds:— (i) The complaint is not proper inasmuch as it has been filed by the respondent through an attorney; (ii) The complaint is time barred; (iii) The complaint is not maintainable in view of the agreement and mutual understanding arrived at between the parties by virtue of which a sum of Rs. 21,000 stands received by the respondent as earnest money; (iv) No cheque was issued by the petitioner in favour of the respondent. The account of the petitioner stood closed on 12.10.1996. The cheque book containing the signed cheques were stolen by the respondent from the office of C.A. Saini. 5. I have heard the learned Counsel for the parties and have gone through the record of the case. 6. Admittedly, the present complaint has been filed by the respondent through his son and attorney Shri Arvind Malhotra. The petitioner has objected to the maintainability of the complaint on the ground that the same has not been made by the respondent himself. 7. In Manimekalai v. Chapaldas Kalyanji Sanghvi, 1995 Cri. LJ 1102, a complaint for the offence under Section 138 of the Act was sought to be quashed on the ground that the same was bad having been made by a person holding the power of attorney from the payee of the cheque. 7. In Manimekalai v. Chapaldas Kalyanji Sanghvi, 1995 Cri. LJ 1102, a complaint for the offence under Section 138 of the Act was sought to be quashed on the ground that the same was bad having been made by a person holding the power of attorney from the payee of the cheque. A learned Single Judge of the Madras High Court repelling the contention, held that the payee represented by the person holding power of attorney could file the complaint for the offence under Section 138 of the Act. 8. A similar view has been taken by a learned Single Judge of the Andhra Pradesh High Court in Srnt. Payyati Savitri Devi v. Malireddy Damayanthamma and another, 1997 (4) Crimes 325, and by the High Court of Gujarat in Anil G. Shah v. J. Chittranjan Co. and another, 1998(2) Crimes 347. 9. Section 138 of the Act provides:— "138. Dishonour of cheque for insufficiency, etc. Payyati Savitri Devi v. Malireddy Damayanthamma and another, 1997 (4) Crimes 325, and by the High Court of Gujarat in Anil G. Shah v. J. Chittranjan Co. and another, 1998(2) Crimes 347. 9. Section 138 of the Act provides:— "138. Dishonour of cheque for insufficiency, etc. of funds in the account—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this Section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (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; and (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. Explanation.—For the purposes of this section, debt or other liability means a legally enforceable debt or other liability." Section 142 of the Act further provides:— "142. Explanation.—For the purposes of this section, debt or other liability means a legally enforceable debt or other liability." Section 142 of the Act further provides:— "142. Cognizance of offences.—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 coiirse of the cheque; (b) vsuch 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; (c) no court inferior to that of a Metropolitan or a Judicial Magistrate of the first class shall try any offence punishable under Section 138." 10. The scheme laid down under the proviso to Section 138, read with Section 142, of the Act specifically stipulates:— (i) The cheque must be presented to the bank for encashment within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier; (ii) Upon the return of the cheque as unpaid, the payee or the holder in due course thereof must, within fifteen days of the receipt of information by him regarding the return of the cheque as unpaid, serve a notice on the drawer of the cheque calling upon him to make the payment of the amount of the cheque; (iii) It is only when the drawer fails to make payment of the amount of the cheque within fifteen days of the receipt of the notice contemplated under (ii) above, that proceedings under Section 138 of the Act could be initiated against him within one month of the date, on which the cause of action arises. 11. "Cause of action" within the meaning of clause (b) of Section 142 of the Act would arise only on the failure of the drawer of the cheque to pay the amount thereof within fifteen days from the date of receipt of notice as contemplated by clause (c) of the proviso to Section 138 of the Act. In other words, till the said period of fifteen days after the receipt of the notice expires, there would be no cause of action for the payee of the cheque or its holder in due course. 12. In other words, till the said period of fifteen days after the receipt of the notice expires, there would be no cause of action for the payee of the cheque or its holder in due course. 12. The Supreme Court in M/s. Saketh India Ltd. and others v. M/s. India Securities Ltd., AIR 1999 SC 1090, has held that in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of limitation of one month for filing the complaint under Section 138 of the Act will be reckoned from the day following the day on which the period of fifteen days from the date of receipt of notice by the drawer of the cheque, expires. 13. In the present case, the requisite notice dated 22.6.1999 was, admittedly, received by the petitioner on 1.7.1999. The period of fifteen days expired on 16.7.1999. The cause of action, therefore, arose to the respondent on 17.7.1999. The present complaint filed on 9.8.1999 is, thus, on the face of it is within time having been filed within 30 days from the date of cause of action. 14. The cheque in question on presentation was returned by the bank with the endorsement "account closed." The Supreme Court in NEPC Micon Ltd. and others v. Maqma Leasing Ltd., AIR 1999 SC 1952, has held that when the cheque is returned with the endorsement "account closed", it would mean that the cheque is returned as unpaid on the ground that the money standing to the credit of that account is insufficient to honour the cheque and it would be an offence within the meaning of Section 138 of the Act. 15. There is no denying that the cheque in question is signed by the petitioner as its drawer. Her case is that the cheque book containing the signed cheques were stolen by the respondent and that the account stood closed on 12.10.1996. 16. Under the law, when the drawer does not deny his signatures on the cheque presumption is that cheque was made or drawn for consideration on the date which cheque bears. Holder of the cheque is presumed to have received it for discharge of liability. Burden is upon the drawer to rebut the presumption [See: K. Bhaskaran v. Sankaran Vaidhyan Balan and another, AIR 1999 SC 3762.] 17. Holder of the cheque is presumed to have received it for discharge of liability. Burden is upon the drawer to rebut the presumption [See: K. Bhaskaran v. Sankaran Vaidhyan Balan and another, AIR 1999 SC 3762.] 17. Once it is admitted in the present case that the cheque is signed by the petitioner, the burden is on her to show that the cheque was not issued by her or that the same was not for consideration. The question whether the cheque book containing the signed cheques was stolen by the respondent or whether there has been any fresh agreement between the parties cannot be gone into at this stage since the same can be decided only on the basis of evidence. The petitioner would be having opportunity to lead such evidence during the course of trial. 18. For the foregoing reasons, there is no merit in the present petition and the same is accordingly dismissed. 19. Parties through their counsel are directed to appear before the learned Chief Judicial Magistrate, Mandi, on 23.10.2000. The records be returned forthwith so as to reach well before the date fixed. Petition dismissed.