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2001 DIGILAW 136 (ORI)

Pradyut Kumar Mohanty v. Dilip Singh Meheta

2001-03-26

P.K.TRIPATHY

body2001
ORDER 26.3.2001 - Learned counsel for the opposite party files the certified copy of the complaint, initial statement and the order sheets in I.C.C. No. 66 of the 1999 of the Court of S.D.J.M., Panposh at Uditnagar, Rourkela. 2. Heard further argument and the application under Sec. 482, Cr.P.C. is disposed of in the following manner at the stage of hearing on admission. 3. The undisputed fact is that petitioner is the accused No.2 and opposite party is the complainant in I.C.C. No. 66 of 1999. The complainant instituted the said proceeding with the allegation of commission of the offence under Sec. 138, Nego¬tiable Instruments Act, 1881 (in short the ‘Act’) by the petition¬er with respect to two cheques totally amounting to Rs. 2,80,000/- (Two lakhs and eighty thousand). According to the averment in the complaint and the initial statement of the com¬plainant the said two cheques issued by the accused No. 2 on behalf the Company i.e. accused No.1 were presented for payment in the concerned bank on 4.3.1999 i.e. within the period of validity of the cheques. On 18.3.1999 the complainant got the massage from the Bank relating bouncing of the cheques on the ground that the accused had instructed for ‘stopping payment’. Therefore, on 23.3.1999 complainant, issued statutory notice as provided in Clause (b) of the proviso to Sec. 138 of the Act. According to the complainant accused No.2 regretted for the inconvenience and requested the complainant to present the cheques again in the first week of May, 1999. It is not clear from the averment in the complaint or the initial statement of the complainant as to whether there was written communication or verbal conversation in that respect. Be that is it may, the complainant again presented the cheques with the Bank on 11.5.1999 and it again bounced on 22.5.1999. Thereafter on 31.5.1999 petitioner issued a registered notice purported to be one under Clause (b) of the proviso to Sec. 138 and when the accused persons did not make the payment he lodged the complaint on 22.6.1999. 4. Be that is it may, the complainant again presented the cheques with the Bank on 11.5.1999 and it again bounced on 22.5.1999. Thereafter on 31.5.1999 petitioner issued a registered notice purported to be one under Clause (b) of the proviso to Sec. 138 and when the accused persons did not make the payment he lodged the complaint on 22.6.1999. 4. Learned counsel for the petitioner argues that in view of the ratio in the case of Sudanandan Bhadran v. Madhavan Sunil Kumar, (1998) 15 OCR (SC) 372, the cause of action is to be computed from 22.3.1999 for filing a complaint within a period of 45 days thereafter and not from 31.5.1999 because according to the said ratio the cause of action arose from the date of issue of first registered letter on 22.3.1999. Accordingly, he states that if the period of limitation shall be counted in that manner then the complaint filed on 22.6.1999 is barred by time and, therefore, in view of the provision in Sec. 142, Clause (b) the order of cognizance is bad in law . 5. Learned counsel for the complainant/opposite party, on the other hand, relying on the case of M/s. Dalmia Cement (Bha¬rat) Ltd. vs. M/s. Galaxy Traders and Agencies Ltd. and others (2001) 20 OCR (SC) 306 argues that in the peculiar facts and circumstances involved in this case that the accused had request¬ed the complainant to present the cheques again and in the mean¬time to make arrangement with the Bank accordingly for payment of the amount was the reason for which the complaint was not filed within the statutory period after bouncing of the cheques on its first presentation and, therefore, according to the ratio in the above cited case the period of limitation should be computed from 31.5.1999 and not from 22.3.1999. 6. In Sudanandan Bhadran (supra) the fact available to the apex Court was that on 4.1.1991 the respondent handed over a cheque for Rs. 30,000/- to the appellant in liquidation of the loan. That cheque was presented in the Bank for encashment on 5.1.1991 but it bounced due to insufficiency of funds. On 15.1.1991 statutory notice was sent to the respondent. On receipt of that notice the respondent requested the appellant for some time to pay the amount but he did not keep the promise. So the appellant again presented the cheque but it bounced on 4.5.1991. On 15.1.1991 statutory notice was sent to the respondent. On receipt of that notice the respondent requested the appellant for some time to pay the amount but he did not keep the promise. So the appellant again presented the cheque but it bounced on 4.5.1991. Thus appellant sent another notice on 9.5.1991 demanding for payment and when the respondent failed to pay the appellant filed the complaint on 30.6.1991. When the respondent failed to pay the amount on such demand the appellant complained of commission of the offence under Sec. 138 of the Act by the respondent. Considering the aforesaid fact the apex Court held that cause of action, arose in that case after bouncing of cheque on its first presentation inasmuch as after such bouncing the statutory notice as provided in the Clause (b) of the proviso to Sec. 138 was issued. The apex Court further clearly held that though the holder of the cheque in due course is entitled to present the cheque for any number of times as he pleases within the period of validity of such cheque but the cause of action shall be construed to arose when after such bouncing of the cheque a notice is sent in accordance with the statutory provision demanding payment. In paragraph 10 of the said judgment the apex Court have propounded thus : "10. Now the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour and that too within one month from the date the cause of action arises, can be recon¬ciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmo¬nised, with the interpretation that on each presentation of the cheque and its dishonour a fresh right and not cause of action-accrues in his favour. He may therefore, without taking pre-emptory action in exercise of his such right under Clause (b) of Sec. 138, go on presenting the cheque so as to entitle him to exercise such right at any point of time during the validity of the cheque. He may therefore, without taking pre-emptory action in exercise of his such right under Clause (b) of Sec. 138, go on presenting the cheque so as to entitle him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under Clause (b) of Sec. 138 he forfeits such right for, in case of failure of the drawer to pay the money within the stipulated time, he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires." In the case of M/s. Dalmia Cement (supra) the fact available to the apex Court was that the amount paid through cheque by the respondent towards the price of the cement that was purchased from the appellant. That cheque was issued on 26.5.1998. After presentation the cheque bounced due to insufficiency of the funds and that was communicated to the appellant on 2.6.1998. Appellant issued the statutory notice in terms of Sec. 138 on 13.6. 1998. The postal acknowledgement was received on 15.6.1998. However, on 20.6.1998 respondent intimated the appellant in a letter that he had received an empty envelope and requested the appellant to mail the contents. Believing the aforesaid statement of the respondent to be true appellant again presented the cheque on 1.7.1998 and it again bounced on 2.7.1998. Again a statutory notice was issued in accordance with law and the respondents received the same on 27.7.1998 but did not make the payment. Thus, the appellant filed the complaint on 9.9.1998 which was within the statutory period from the second notice. Cognizance was taken by the Chief Judicial Magistrate and that was quashed by the High Court in entertaining an application under Sec. 482, Cr.P.C. filed by the respondents. In considering the aforesaid fact and construing the term 'cause of action' for computing the period of limitation the apex Court took note of the statement of respond¬ents that they had not received the registered letter issued after bouncing of the cheque on its first presentation. In considering the aforesaid fact and construing the term 'cause of action' for computing the period of limitation the apex Court took note of the statement of respond¬ents that they had not received the registered letter issued after bouncing of the cheque on its first presentation. The apex Court held that when law provides for presentation of cheque for more than once within the period of its validity and that is the ratio ruling the field, therefore, successive presentation of the cheque cannot be regarded as disadvantage to the holder of the cheque. Their Lordships were pleased to observe that the cause of action arose when the statutory notice as provided in Clause (b) in the proviso to Sec. 138 is complied with, that is to say a registered letter issued is received by the accused but fails to make payment within fifteen days from the date of receipt of such notice. Their Lordships observed that since in the case at their hand the respondent had made a statement about non-receipt of the first notice, therefore, the cause of action was to arise from the date of receipt of the registered notice by them and, therefore, the complaint was within time. 7. Though learned counsel for the opposite party argues that the aforesaid two ratio are conflicting to each other and, therefore, according to rule of precedent the latter decision shall prevail over the former but that is found to be an incor¬rect argument inasmuch as there is no conflict in laying down the ratio in the aforesaid two cases. In both the cases, the apex Court is consistent in its view that the period of limitation shall count from the date of cause of action and so far as the date of cause of action is concerned, the apex Court in both the above cited cases is also consistent in laying down that when the mandatory statutory notice as provided in Sec. 138 is issued and payment is not made within fifteen days from the date of receipt then that gives arise to cause to action 8. Judging the fact of the case in the light of the above cited ratio this Court finds that the facts and circumstances available in this case is quite distinguishable from the facts and circumstances in the case of M/s. Dalmia Cement (supra) inasmuch as in the present case neither the accused has denied or disowned receipt of the notice issued after bouncing of the cheques on its first presentation nor the opposite party has made such an averment either in the complaint or the statement which he adduced in the Court of S.D.J.M. Under such circumstance, after issue of the registered letter when petitioner failed to make payment within fifteen days from the date of receipt of the said notice it was obligatory on the part of the opposite party to institute the complaint within a period of thirty days from the expiry of that period of fifteen days. Admittedly, that has not been done by the opposite party. Therefore, issue of second letter after the subsequent bouncing of the cheque does not give rise to a fresh or further cause of action within the meaning of Chapter XVI of the Act. It is thus found that the complaint was filed beyond the period of limitation as provided in Clause (b) of Sec. 142 of the Act. This aspect was not at all taken into consideration by the S.D.J.M. while considering the question of taking cognizance, thus, the order of cognizance being barred by law of limitation is quashed. The crl. misc. case is accordingly allowed. Misc. Case allowed.