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2002 DIGILAW 407 (CAL)

Moinuddin Munshi v. Abhijit Pal

2002-06-21

Pradip Kumar Biswas

body2002
JUDGMENT Pradip Kumar Biswas, J.: This is an application under sections 397/401 read with section 482 of the Code of Criminal Procedure filed at the instance of the accused petitioner seeking to set aside the impugned order dated February 28, 2001 passed by the learned Metropolitan Magistrate, 3rd Court, Calcutta in connection with Case No. C-1448 of 1999 and/or for quashing of the aforesaid proceeding. 2. The short facts leading to the filing of the present application are as follows:- 3. Complainant-opposite party No.1 filed a petition of complaint against the present petitioner for an alleged offence under section 138 of the Negotiable Instruments Act, 1881 as amended (hereinafter referred to as the N.I. Act) before the Court of the learned Metropolitan Magistrate, 3rd Court, Calcutta and the said application was registered as C-1448 of 1999 under section 138 of the N.I. Act. 4. It was alleged in the petition of complaint that the complainant was the Assistant Officer, Cement Division of the Tata Iron and Steel Company Limited (hereinafter referred to as the 'company') was carrying on its business of manufacturing and marketing its various products in India and abroad. The accused was the proprietor of M/s. Munshi Hardware of Palsunda, Nadia and dealing in business of cement having his shop/office at the said place. 5. Accused petitioner approached the company for acceptance of his proprietorship concern as 'Dealer' of the company and as per the procedure of the company, the necessary application for accepting the proprietorship concern as dealer was sent by the accused person to the office of the company at Calcutta. The company, in turn accepting the same in the office of the complainant company issued the Dealership Certificate in favour of the said proprietorship concern of the accused person. 6. Pursuant to the said dealership certificate, as agreed upon in terms of the said proprietorship concern as 'dealer', the supply of cement was made by the company from time to time to the accused person from the branch office of the company and the accused party as the proprietor of the concerned company, in due discharge of the existing liability being the price of the cement purchased from the company, issued a post-dated cheque No. NCB 119514 dated November 13, 1998 for a sum of Rs. 2,34,240.80 p. drawn on Nadia Gramin Bank, Nadia in favour of the complainant-company and it was settled that the said cheque which was inclusive of sales taxes and other Government Taxes and the charges would be deposited in Bank on November 13, 1998 for negotiation as accumulated outstanding dues till that date of the said proprietorship concern to the company. 7. The complainant-company deposited the said cheque on November 13, 1998 with its Bank being State Bank of India, Krishnanagar Branch for negotiation which was dishonoured vide Bank Memo dated November 23, 1998 with the reason 'Funds Insufficient' and the said Bank Memo was received by the company at its Branch Office on December 18, 1998. 8. The complainant company immediately thereafter sent notice dated December 18, 1998 under Registered Post with A/d. to the accused person's proprietorship concern intimating and/or calling upon the said proprietorship concern of the said accused person to make good the said amount of Rs. 2,34,240.80 p. within 15 days from the date of the receipt of the said notice as required under the N.I. Act. 9. Neither the said Registered Letter (notice) nor the Acknowledgment Card of the said Registered Letter had been received back by the complainant-company and the company, after waiting for sometime, wrote a letter dated April 8, 1999 requesting the postal authority as to the fate of the said Registered Letter and it was learnt that the said letter was delivered to the accused on December 19, 1998 as has been confirmed by the letter of postal authority dated May 5, 1999. 10. In spite of the receipt of the aforesaid notice, the accused party who was in charge of the said proprietorship concern and was responsible for the day-today conduct of the business of the said concern wilfully failed and neglected to pay the said amount to the company within the due date and the accused person as a proprietor of M/s. Munshi Hardware did not make the payment of the said sum. Thereafter the complainant company filed an application under section 138 of the N.I. Act on 14.5.99 against the present petitioner. 11. Thereafter the complainant company filed an application under section 138 of the N.I. Act on 14.5.99 against the present petitioner. 11. It has been submitted by the petitioner that in view of the provisions of sections 138 and 142 of the said Act, the cause of action of the present case arose on the expiry of 15 days counted form December 19, 1988 i.e. on January 4, 1999 and the period of limitation for filing the petition of the complaint expired on 3rd February, 1999 and the petition of complaint, having not been filed within the period of limitation, is hopelessly hit by the provisions of section 142 of the said Act. 12. The present petitioner accordingly filed an application praying for dropping of the proceeding alleging that the petition of complaint was not maintainable in law being hopelessly barred by limitation as prescribed under section 142 of the N.I. Act and the cognizance taken by the learned Metropolitan Magistrate, 3rd Court, Calcutta was not only bad in law but totally without jurisdiction. But the aforesaid application was rejected by the learned Court by his order dated 28th February, 2001 after hearing the parties and holding, inter alia, that although it was alleged by the complainant that they came to know about the service of notice upon the accused person on 19.12.98 for the first time from the letter dated May 5, 1999, yet, from the side of the accused persons nothing has been produced to show that before 5.5.99 the complainant knew about the service of notice upon the accused on 19.12.98 and the main question to be decided was as to when the complainant has come to know about the service of notice upon the accused person and the said question would have to be decided during trial and it was further held that at that stage it was not possible for the Court to decide as to whether the case was barred by the limitation or not and on the aforesaid findings the learned Court was pleased to reject the aforesaid application of the petitioner taking erroneous view of the law and fact. 13. 13. So, being aggrieved by and dissatisfied with the aforesaid order the present application has been filed by the petitioner alleging that from the facts and circumstances it will be quite apparent and clear that the instant case was hopelessly barred by section 142 of the N.I. Act and the learned Metropolitan Magistrate has committed serious error in law in deciding the aforesaid application and as such there has been improper and illegal exercise of the jurisdiction by the learned Magistrate. Hence, this prayer. 14. This application has, however, been opposed by the opposite party/complainant alleging that the instant case under section 138 of the N.I. Act filed by the complainant was not at all hopelessly barred by limitation inasmuch as in the present case, knowledge of the sender of the notice about the date of the receipt of the same being an essential requirement of fair and natural justice, the expression "within 15 days of the receipt of the said notice" used in the provision of section 138(c) of the N.I. Act should clearly mean the date when the sender acquires the knowledge about the date of the receipt of the notice given by him under clause (b) of the relevant provision and in the present case, the complainant/opposite party only acquired knowledge about the date of the receipt of the notice given by him under clause (b) of section 138 of the N.I. Act only on 5.5.99, the filing of complaint on 14.5.99 cannot at all be held to be barred by limitation. 15. I have heard the learned counsel of both sides at length. 16. Mr. Yasin Ali, the learned counsel appearing for the petitioner, in course of his submission has submitted before me that to assess the maintainability of the present petition under section 138 of the N.I. Act and the jurisdiction of the court in taking cognizance of the alleged offence, certain dates will be very much material and those are as under:- 17. On 13.11.98, the post-dated cheque was issued by the accused petitioner for a sum of Rs. 2, 34,240.80p. 18. On 13.11.98, the cheque was deposited for encashment to the State Bank of India. 19. On 23.11.98, the cheque was dishonoured on the ground of "Insufficiency of fund". 20. On 18.12. On 13.11.98, the post-dated cheque was issued by the accused petitioner for a sum of Rs. 2, 34,240.80p. 18. On 13.11.98, the cheque was deposited for encashment to the State Bank of India. 19. On 23.11.98, the cheque was dishonoured on the ground of "Insufficiency of fund". 20. On 18.12. 98, the Memo of Dishonour was received in the office of the complainant-company and on the same date, notice of demand for payment of money was issued by the complainant-company. 21. On 19.12.98, the notice of demand was delivered to the accused. 22. On 8.4.99, the complainant-company wrote a letter to the postal authority seeking information with regard to the fate of the registered postal cover. 23. On 5.5.99, the reply of the postal cover was received by the complainant-company intimating the fact that notice was served on the accused on December 19, 1998. 24. On 14.5.99, the company filed application under section 138 of the N.I. Act. 25. Drawing my attention to the aforesaid dates, it has been submitted by Mr. Ali that in view of the mandatory provision of sections 138 and 142 of the N.I. Act, the cause of action for filing a complaint in the instant case will only arise on the expiry of 15 days counted from December 19, 1998, i.e. on January 4, 1999 and as such the period of limitation in filing the petition of complaint in the instant case would expire on February 3, 1999 and the same having not been filed within the aforesaid period of limitation, it is clearly hit by section 142 of the N.I. Act, because it is now quite well settled position of law that before a drawer can be effectively prosecuted under this chapter, the cheque should have been issued in discharge of a legally enforceable debt or liability, it should have been dishonoured for want of funds, the payee or holder should have issued, within a specified time limit, any notice to the drawer demanding payments within 15 days of receipt of the notice and within a month after cause of action arises, the payee or holder in due course should file a complaint against drawer. In support of his contention, he has placed his reliance on a number of decisions reported in 1998(6) Supreme Court Cases 514 in the case of Sadanandan Bhadran vs. Madhaban Sunil Kumar; 1999(2) C.H.N. S.C. 39 in M/s. Sil Import, U.S.A. vs. M/s. E.A. Silk Exporters, Bangalore, 2001 A.I.R. S.C.W. page 315 in the case of M/s. Dalmia Cement (Bharat) Ltd. vs. M/s. Galaxy Traders and Agencies Ltd. & Ors., and 2001(2) C.H.N. (S.C.) page 51 in the case of Ishar Alloy Steels vs. Jayaswals Neko Ltd., and some other decisions of this Court reported in 2000 C.Cr.L.R. (Cal) 9 in the case of Kulik Paper Industries (Pvt.) Ltd. & Anr. vs. Sanjay Agarwala, 2001(1) C.H.N.(S.C.) page 235 in the case of Darshan Singh vs. State of West Bengal & Ors. and 2001(1) C.H.N. 903 in the case of Maruti Equipments Pvt. Ltd. & Anr. vs. State of West Bengal & Anr., and with reference to above decisions, it has been submitted by him with utmost emphasis that it has now been settled by the ratio of the decisions of the Apex Court in the aforesaid decisions as also by our High Court that the period of one month for filing the complaint will be reckoned from the day, immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires. 26. Mr. Manoj Roy, appearing for the opposite party/complainant in opposing the aforesaid contention of Mr. Ali, has drawn my attention to a decision reported in 1993(2) C.H.N. page 82 in the case of Santa Priya Engineers (Pvt.) Ltd. & Anr. vs. Uday Shankar Das & Anr. and has submitted further that under the provisions of clause(c) of section 138 of the N.I. Act, the cause of action for filing a complaint arises on the failure of the drawer "to make 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 15 days of the receipt of the said notice" given under clause (b) thereof: and not before that and no complaint can, therefore, legally be filed before the aforesaid period. 27. 27. In this connection, it has further been contended that the knowledge of the sender of the notice about the date of receipt of the same being an essential requirement of fair play and natural justice, the expression "within 15 days of the receipt of the said notice" used under section 138(c) of the N.I. Act should clearly mean the date when the sender acquires the knowledge about the date of the receipt of the notice given by him under clause (b) of the relevant provision. 28. Placing his reliance on the ratio of the aforesaid decision, it has further been contended by him that having regard to the well recognized rule of interpretation, the fair and reasonable construction of clause (c) of section 138 of the Act should be read into it so that the expression therein "within 15 days of the receipt of the said notice" should be made to mean within 15 days from the date of the knowledge of the sender about the receipt of the notice so that such like complaint may not fail for the default on the part of the postal department, without any fault on the part of the complainant and on such construction, the cause of action for such complaint, so far as the complainant is concerned, would accrue on the failure of the drawer to make payment within 15 days from the date of the knowledge of the complainant about the receipt of the notice by the former (drawer); which would neither be prejudicial to him, rather beneficial to him as he would get longer time to make payment of the amount and, thus, avoid criminal liability of non-payment. 29. He has, therefore, contended that since the complainant/O.P. received information on 5.5.99 from the postal authority after writing a letter to the postal authority on 8.4.99, seeking information with regard to the fate of the registered postal cover issued on 18.12.98 and accordingly, the instant application being filed on 14.5.99 should certainly be held to be filed well within the time of limitation and as such no interference by this Court is also necessary with regard to the present matter. 30. Placing reliance further on a decision reported in 1999(7) S.C.C. 510 in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr. 30. Placing reliance further on a decision reported in 1999(7) S.C.C. 510 in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr. it has further been contended on behalf of the O.P./complainant that the context envisaged in section 138 of the N. I. Act invites a liberal interpretation for the person who has statutory obligation to give notice because he is presumed to be the looser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to section 138 of the Act show that the payee has the statutory obligation to make a demand by giving notice and the thrust in the clause is on the need to "make a demand" and it is only the mode for making such a demand which the legislature has prescribed. The payee can send the notice for doing his part for giving the notice and once it is despatched, his part is over and the next depends on what the sendee does. 31. Placing reliance on the above decision, it has further been contended by him that it must be borne in mind that the court should not adopt such interpretation which helps a dishonest trader and clips a honest payee as that would defeat the very legislative measure. 32. In elaborating his argument, he has further submitted that in the instant case, where notice is sent by registered post with A/D, the knowledge of the sender (complainant) about the date of receipt of such notice would invariably be dependent upon other agencies namely, the postal department who is obliged to return the A/D card to the sender of the registered notice. 33. He has further submitted that it is our common experience that more often than not, A/D card is hardly returned back to the sender of the registered notice in time and in some cases A/D cards never reaches back to the sender necessitating correspondence with the postal department seeking to know about the fate of the registered notice and such reply of the query does not reach back to the sender within the reasonable time and in such cases, filing of the complaint is likely to suffer or fail for no fault on the part of the complainant, but for the laches and failure on the part of the postal department. 34. 34. He has further submitted that the purpose of the Act can never be like that and in a situation like this depending upon the well settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result, which could never have been intended by the legislature, the court may modify the language used by the legislature and in such a case the court may read into the statutory provision a condition, which, though not expressed, is implicit as constituting the basic assumption underlying statutory provision. He has further submitted that having regard to the well recognized rule of interpretation, a fair and reasonable construction of clause (c) of section 138 of the Act should be read into it to mean that the expression used therein "within 15 days of the receipt of the said notice" should be made to mean "within 15 days from the date of knowledge of the sender about the receipt of the notice" so that such complaint may not fail for default on the part of the postal department without any fault on the part of the complainant. 35. Now, having heard the rival contention of the parties the point that has come up for consideration of the court is that what will be the starting point of limitation in filing a complaint petition under section 138 of the N.I. Act and whether it should be within 15 days of the receipt of the said notice or within 15 days from the date of knowledge of the receipt of the notice? 36. For appreciating the rival contention of the parties, the provisions of section 138 and section 142 of the N.I. Act may be quoted as under which are as follows:- "138. 36. For appreciating the rival contention of the parties, the provisions of section 138 and section 142 of the N.I. Act may be quoted as under which are as follows:- "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 payment of the said amount of money by giving a notice, in writing to the drawer of the cheque, within fifteen days of 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. 142. 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 course of the cheque; (b) such 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 Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138." 37. From reading of the decisions, referred to above, specially the decisions cited on behalf of the petitioner it appears to me that the above decisions although do not exactly fit in with the facts and circumstances of the case in hand, yet, the ratio that has emerged out from the aforesaid decisions of the Apex Court as also of this Court clearly establishes that cause of action for filing the complaint under section 138 of the N.I. Act will be reckoned from the day immediately following the day on which period of 15 days from the date of the receipt of the notice by the drawer expires. 38. From the ratio, decided as above, the decision reported in 1999 [7] Supreme Court Cases 510 [supra] cited on behalf of the complainant/O.P., in my humble opinion, does not come to any help to the complainant/O.P. in any way in this case and it is more so as the facts and circumstances appearing in the instant case, are somewhat different from the case involved in the aforesaid decision. 39. Further I find that the decision reported in 1993(2) C.H.N. 82 (supra) cannot also be treated as good law in view of the authoritative pronouncement of the Supreme Court on the issue of cause of action and the same, therefore, should be treated to be impliedly overruled. 40. That being the position, I am rather prompted to accept the contention of the accused petitioner in preference to the submissions made on behalf of the complainant/O.P. to accept that the instant complaint is clearly barred by limitation being hit by provisions of section 142 of the N.I. Act. 41. 40. That being the position, I am rather prompted to accept the contention of the accused petitioner in preference to the submissions made on behalf of the complainant/O.P. to accept that the instant complaint is clearly barred by limitation being hit by provisions of section 142 of the N.I. Act. 41. In view of what I have stated above, I hold clearly that the filing of the complaint in the instant case was clearly beyond the period of limitation and as such the continuation of the above proceeding, before the concerned Court, should be a mere abuse of the process of law and as such the same should be quashed and consequently, therefore, the order passed by the learned Court below cannot at all stand and should be set aside. 42. The impugned order is, thus, set aside and the present proceeding is thus quashed. 43. The revisional application is thus disposed of accordingly. 44. Let a copy of this judgment be sent down to the concerned Court for information and necessary compliance. Revisional application quashed.