Research › Search › Judgment

Rajasthan High Court · body

2003 DIGILAW 416 (RAJ)

Firm Vanechand Satish Kumar v. State of Rajasthan

2003-03-21

H.R.PANWAR

body2003
Judgment H.R. Panwar, J.-By the instant revision petition, the petitioners have challenged the order dated 22.01.2005 passed by Judicial Magistrate, Sumerpur, district Pali (for short the trial Court hereinafter) in Criminal Case No. 24/2004, whereby the trial Court read over the charges to the petitioners for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short the Act hereinafter). Aggrieved by the order impugned the petitioners have filed the instant revision petition. 2. Learned Counsel for the parties submit that in the instant case, after dishonour of the cheque, a notice was served on the petitioners by Non-petitioner No. 2 requiring the petitioners to pay the cheque amount within 15 days of the receipt of the notice, however, the petitioners failed to pay the amount within the stipulated period of 15 days. The complainant non-petitioner instead of filing the complaint within the stipulated period of one month, again issued a notice requiring the petitioner to pay the cheque amount and on failure to pay the cheque amount within 15 days of subsequent notice, a complaint was filed. According to learned Counsel, the cause of action arose to the Non-petitioner No. 2 on expiry of 15 days period from the date of first notice served on the petitioners and thereafter the Non-petitioner No. 2 was required to file the complaint within one month which has not been filed. It is always open for the complainant to present the cheque again and again but so far as the cause of action is concerned, once it arises the period starts running for filing the complaint. 3. Learned Counsel for the parties submit that the controversy involved in the instant case stands concluded by decision of Honble Supreme Court in Prem Chand Vijay Kumar vs. Yashpal Singh & Anr., 2005 SCC (Cri.) 1153, wherein the Apex Court held that dishonour of cheque on each presentation gives a fresh right to present it again during the period of its validity, but it does not give rise to afresh cause of action. It was further held that complaint has to be filed within one month from the day immediately following the day on which the period of 15 days from the date of receipt of the first notice by the drawer expires and if the complaint has not been filed within one month following the day on which the period of 15 days from the date of receipt of first notice expires, the complaint is barred by period of limitation. 4. In the instant case, a cheque for a sum of Rs. 50,000/-was said to have been issued by petitioners to Non-petitioner No. 2 on 16.08.2003 drawn on State Bank of India, Branch Sumerpur. On cheque being presented in Central Co-operative Bank, Branch Sumerpur by Non-petitioner No. 2 on 21.08.2003, it was returned unpaid and dishonored on 23.08.2003 with the endorsement of insufficient fund in the account of the petitioners. A statutory notice was issued by Non-petitioner No. 2 by a registered AD on 29.08.2003 requiring the petitioners to pay the cheque amount within 15 days from the receipt of the notice. The said notice was received by the petitioners on 30.08.2003. Despite receipt of the notice on 30.8.2003, the petitioners failed to pay the cheque amount within the stipulated period of 15 days. On expiry of 15 days i.e., from the day immediately following the day on which the period of 15 days from the date of receipt of the notice expired, the cause of action to file the complaint started running and within one month from the date of accrual of the cause of action, complaint as envisaged under Section 138 of the Act was required to be filed. 5. Section 142 of the Act reads as under:-142. 5. Section 142 of the Act reads as under:-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; [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;] .(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. 6. The proviso to Section 142 of the Act has been inserted by Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (55 of 2002), Section 9, (w.e.f. 06.02.2003). Prior to 06.02.2003, there was no provision to take cognizance of the offence under Section 142 of the Act if the complaint has not been filed within the period of one month from the date of cause of action arose. However, by Amendment Act, 2002 (55 of 2002) the proviso has been inserted providing that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. In the instant case, the Non-petitioner No. 2 complainant did not file the complaint within one month from the date immediately following the day on which the period of 15 days from the date of receipt of first notice expired, but choses to present the cheque again for encashment on 211.2003 which was again dishonoured with the endorsement of insufficient fund in the account of the petitioners and the intimation of dischonour of the cheque was received by the Non-petitioner No. 2 on 211.2003. The Non-petitioner No. 2 complainant again sent a notice requiring the petitioner to pay the cheque amount vide notice dated 112.2003 which was served on the petitioner on 112.2003 and thereafter within one month i.e., on 02.01.2004 a complaint was filed. The Non-petitioner No. 2 complainant again sent a notice requiring the petitioner to pay the cheque amount vide notice dated 112.2003 which was served on the petitioner on 112.2003 and thereafter within one month i.e., on 02.01.2004 a complaint was filed. In the instant case, the Non-petitioner No. 2 complainant failed to file the complainant from the date of cause of action arose i.e., from the day immediately following the day on which the period of 15 days from the date of receipt of first notice dated 29.08.2003 which was received by the petitioner on 30.08.2003. Though even if the complaint was not filed within the period of one month, in view of proviso to Section 142, the complaint could have been entertained and cognizance could have been taken, had the complainant satisfied the Court showing sufficient cause for not making the complaint within the period of one month. But since, in the instant case, the Non-petitioner No. 2 complainant, neither filed the complaint within the statutory period of limitation nor made an application satisfying the Court by showing sufficient cause for not making such complaint within such period, and, therefore, the cognizance which has been taken on time barred complaint as also framing of charge/reading over the substance of the charge are bad in law. 7. In Prem Chand Vijay Kumar vs. Yashpal Singh & Anr. 2005 SCC (Cri.) 1153, Honble Supreme Court held that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque and the order of Punjab and Haryana High Court quashing the criminal complaint on this ground filed by the complainant therein, was upheld. 8. In view of the decision of Honble Supreme Court in Prem Chand Vijay Kumar vs. Yashpal Singh & Anr. (Supra), in the instant case cognizance taken is admittedly barred by period of limitation and, therefore, cognizance as well as the order impugned framing charge cannot be sustained and is liable to be set aside and the complaint filed by Non-petitioner No. 2 deserves to be quashed. 9. Consequently, the revision petition is allowed. The order impugned dated 22.01.2005 passed by Judicial Magistrate, Sumerpur, district Pali is set aside. The complaint is quashed and the petitioners are discharged of the offence under Section 138 of the Act. 9. Consequently, the revision petition is allowed. The order impugned dated 22.01.2005 passed by Judicial Magistrate, Sumerpur, district Pali is set aside. The complaint is quashed and the petitioners are discharged of the offence under Section 138 of the Act. Stay petition stands disposed of .