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2000 DIGILAW 56 (CAL)

Rekha Rani Pyne v. Sambhunath Halder

2000-02-01

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JUDGMENT 1. THIS revisional application under Section 482, cr. P. C. is at the instance of accused and is for quashing of the proceeding in a complaint case No. CR 74/97 under Section 138 of N.I. Act and section 420 of IPC which is pending before the S.D.I.M., berhampore in the District of Murshidabad. O. P. No. 1 initiated the complaint proceeding before S. D. J.M., Berhampore upon complaint that this petitioner gave a cheque to the complainant on 31.10.93 and which was presented to the State Bank of India, Khagra Branch on 15.11.93, but it was dishonoured on the ground of insufficiently of balance. Thereafter notice as required under section 138 was issued which came back with the endorsement 'not found'. Thereafter petition of complaint was filed. This petitioner moved 'this Court in revision for quashing of complaint case and this Court by order dated 23.7.96 has observed that no notice was served as yet and, therefore, complaint case is not maintainable. But this Court, granted liberty to the complainant to serve fresh notice and thereafter to file a petition of complaint if so advised. Accordingly, O.P. No. 1 filed a fresh complaint before the S.D.J.M. Berhampore on 4.2.97. It may be mentioned in this connection that notice as required under section 138 was issued in the meantime and the petitioner having failed to pay the amount as covered, in the cheque, complaint was lodged. Summons were issued and thereafter Warrant of arrest was issued against this petitioner by order dated 20.7.98. On being aggrieved by initiation of such proceeding and issuance of Warrant of arrest accused Rekha Rani Pyne and another has come up before this court with this revision. 2. THUS the point for consideration before this Court of revision is whether complaint as initiated by O. P. No. 1 for the second time is maintainable. There is no dispute than an Account Payee Cheque drawn on u. B. I, was issued on 31.10.93 and O. P. No. 1 presented the Cheque for encashment in the S.B.I., Khagra Branch but the Cheque was returned to O. P. No. 1 on 15.1.93 with the remark no sufficient balance. Thereafter, O.P. No. 1 sent lawyer's letter to the petitioner on 24.12.96 asking the petitioner to make payment forthwith, in default of which there was a threat of initiation of appropriate proceeding. Thereafter petition of complaint was filed. 3. Thereafter, O.P. No. 1 sent lawyer's letter to the petitioner on 24.12.96 asking the petitioner to make payment forthwith, in default of which there was a threat of initiation of appropriate proceeding. Thereafter petition of complaint was filed. 3. THE learned Advocate appearing for the petitioner has submitted before me that complaint is not maintainable because according to him the cheque upon which this complaint rests is invalid. Now the cheque was issued on 31.10.93 and, therefore, valid period has expired when the petition of complaint i.e. the second petition was filed on 4.2.97. Therefore, there was no existence of valid cheque when petition of complaint was filed before the S. D. J. M., Berhampore. It has been urged by the learned Advocates for the petitioner that liberty given by this Court by order dated 23.7.96 cannot override the provision of section 138 and 142 of N.I., Act. Now it appears that this Court granted liberty by order dated 23.7.96 to file fresh petition of complaint after serving fresh notice but by that time cheque has lost its force. That apart, notice is required to be issued within 15 days of the receipt of information by the aggrieved party from the Bank regarding return of the cheque as unpaid. This in accordance with the provision of section 138 (b) of N.I. Act. As per proviso to section 138 (c) of N. I. Act' such payment should be made within fifteen days and petition of complaint is required to be lodged within one month from the date of expiry of cause of action which meant that in the event there Was no payment the cause of action will arise. Now in this case from the notice I find no time was given in the notice. It is only mentioned in the notice that Rekha Rani Pyne has been asked to pay the said amount forthwith. The term forthwith is vague and it does not fulfil the requirements of provision of section 138, N. I. Act. 4. Now in this case from the notice I find no time was given in the notice. It is only mentioned in the notice that Rekha Rani Pyne has been asked to pay the said amount forthwith. The term forthwith is vague and it does not fulfil the requirements of provision of section 138, N. I. Act. 4. IT was held by the Supreme Court in its decision reported in 1998 C Cr LR (SC) 368; that the proviso to section 138 lays down three conditions precedent to the applicability of this section and, for the matter, creation of such offence and the conditions are (1) the cheque should have been presented to the Bank within six months of its issue or within the period of its validity whichever is earlier, (ii) payee should have made a demand for payment by registered notice after the cheque is returned unpaid; and (iii) that the drawer should have failed to pay the amount within 15 days of receipt of notice. It is only when all the above three conditions are satisfied that a prosecution can be launched for the offence under section 138. So far as the first condition is concerned clause (a) of the proviso to Section 138 does not put any embargo upon the payee to Successively present a dishonoured cheque during the period of its validity. So, it must be held that a cheque can be presented any number of times during the period of its validity. Thus, in the case I find that the cheque was not presented within the validity period. There was no demand for payment by registered notice. After cheque is returned, demand was made at a late stage. Notice itself was insufficient inasmuch as no time was given in the said notice. 5. THE Learned Advocate appearing for the O. P. No. 1 has contended that complaint is still maintainable. There was no demand for payment by registered notice. After cheque is returned, demand was made at a late stage. Notice itself was insufficient inasmuch as no time was given in the said notice. 5. THE Learned Advocate appearing for the O. P. No. 1 has contended that complaint is still maintainable. But in my considered opinion the conditions which are required to be fulfilled to constitute an offence within the meaning of section 138 are (a) The cheque in question should have been issued in discharge of whole or part of a debt or liability (b) The cheque is question should be presented within six months or its specific validity period, whichever is earlier (c) The payee or holder should give notice demanding payment within fifteen days of his receiving information of dishonour, which should be for no other reason than for insufficiency of funds (d) The drawer of such cheque can make payment of the said amount of the money to the payee or the holder in due course of the said cheque within fifteen days of receipt of the notice and only if he fails to do so, he is liable to be prosecuted. 6. NOW I find that the disputed cheque was issued on 31.10.93, while the petition of complaint was filed on 4.2.97. In (M/s. PGM Spinning ltd. and Ors, v. A.P.S.F. Corpn. and Anr.) 1999 Criminal Law Journal 4205, it was held that, period of limitation i. e. one month starts from the date immediately following the date on which the period of 15 days from the date of receipt of notice by drawer expires. But here I find that notice was issued on 24.12.96 and the petition of complaint was filed on 4.2.97. The learned lawyer submits that notice within one month from date of receipt of notice but the fact remains that the notice was insufficient. The validity period of the cheque has expired in the meantime. In that circumstances, the proceeding is bad in law as at the material point of time there was no existence of valid cheque. The existence of valid cheque is condition precedent under section 138 of the N. I. Act. That is absent in this case. That apart, I have already found that even if there was an order of granting liberty, it cannot override the specific provision of negotiable Instruments Act. The existence of valid cheque is condition precedent under section 138 of the N. I. Act. That is absent in this case. That apart, I have already found that even if there was an order of granting liberty, it cannot override the specific provision of negotiable Instruments Act. Taking all these facts into consideration I find that the proceeding was bad in law and cognizance was also not taken legally. Therefore, the entire proceeding is liable to be quashed. In that view of the matter this revisional application is allowed and the entire proceeding is quashed. Allowed.