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2003 DIGILAW 495 (CAL)

DAYA SHANKAR GUPTA v. MANORANJAN BANK MAJUMDAR

2003-09-19

PRADIP KUMAR BISWAS

body2003
PRADIP KUMAR BISWAS, J. ( 1 ) PARTIES are present before me and heard them. This is an application under Section 482 of the Code of Criminal Procedure filed at the instance of one Daya Shankar Gupta, the petitioner herein, seeking for quashing of proceeding in Complaint Case No. 1369 of 2001 now pending before the learned Judicial Magistrate, 7th Court, Howrah, under Section 138 of the N. J. Act. ( 2 ) THE short facts leading to the filing of this application are as under: Jt has been alleged by the petitioner that by a letter dated 10/9/2001, the opposite party through his learned Lawyer, Mr. Arabinda Chatterjee, issued a notice of demand under Section 138 of the N. J. Act, 1881 with regard to the alleged dishonour of cheque on 28/8/2001 and the said notice was sent by registered post with AID and the said notice was received by the petitioner on 13/9/2001. It has been alleged by the petitioner that with regard to the aforesaid demand notice, no complaint, however, was filed by the opposite party within the time-frame as provided under Section 142 of the N. J. Act. ( 3 ) IT has further been alleged by the petitioner that in order to create a second cause of action, the said cheque was again presented on 3. 11. 2001 and the same as returned unpaid with the endorsement refer to drawer and thereafter second demand notice dated 8. 11. 200 I was sent by registered post with AID, and pursuant to the second notice dated 8/11/2001, a petition of complaint was filed before the learned Chief Judicial Magistrate, Howrah, and the learned Chief Judicial Magistrate, Howrah, by the impugned order dated 23/11/2001 took cognizance of the said offence and transferred the case to the Court of the learned Judicial Magistrate, 7th Court, Howrah. The petitioner thereafter duly entered appearance before the said Court and took out an application for dropping of the said proceeding alleging that the prosecution lodged by the complainant was time barred inasmuch as it was instituted on the basis of the second notice. But unfortunately the learned Magistrate did not accept the contention, of the petitioner and rejected the aforesaid application. ( 4 ) BEING aggrieved by and dissatisfied with the aforesaid rejection, the petitioner has come up before this forum seeking for the relief as aforesaid. But unfortunately the learned Magistrate did not accept the contention, of the petitioner and rejected the aforesaid application. ( 4 ) BEING aggrieved by and dissatisfied with the aforesaid rejection, the petitioner has come up before this forum seeking for the relief as aforesaid. ( 5 ) I have heard the learned Advocates appearing for both sides at length. ( 6 ) MR. Joymalya Bagchi, the learned Advocate appearing on behalf of the Petitioner, drawing my attention to Annexure P-3, has submitted that from the aforesaid letter, it will be crystal clear that although earlier one notice was sent, yet on the basis of that notice, no complaint was filed and now in order to save the limitation, they have taken a plea alleging that it was only at the request of the petitioner, they deposited the aforesaid cheque in the bank on 2. 11. 200 1 and after, the same being dishonoured, they have taken steps for issuance of the second notice and since no payment has been made, they have come up with this complaint petition. In this connection, he has placed reliance upon two decisions one reported Sadanandan Bhadran v. Madha van Sunil Kumar and another decision reported in the case of Sil Import, USA v. Exim Aides Silk, Exporters, Bangalore2 and with reference to the aforesaid decisions, it has been submitted by Mr. Bagchi that it is clear that on each presentation of the cheque and its dishonour a fresh right and not cause of action accrues in favour of the complainant and the complainant without taking preemptory action in exercise of his such right under Section 138, may go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice in terms of Section 138 (b) he forfeits his right and that being the position, here in this particular case, on the strength of the first notice, no action for filing the complaint being taken, the filing of the complaint on the basis of the admitted second notice would be clearly barred by law of limitation and as such, this is a fit case for quashing. ( 7 ) IN opposing the aforesaid claim of the petitioner, it has been contended on behalf of the opposite party that in this particular case, it is on the representation of the present petitioner, the complainant/opposite party requested the petitioner and on the basis of such request, they did not take any preemptory action in exercise of their right under clause (b) of Section 138 and it was only taken after the issuance of second notice, and therefore, their claim cannot be treated to be barred by the law of limitation. ( 8 ) IN this connection, they have placed their reliance on a decision reported in the case of Uniplas; India Ltd. and others v. State (Govt. of NCT of Dethi) and another and also upon a decision in the case of Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agendes Ltd. and others. ( 9 ) I have given my anxious consideration with regard to the submissions made by the respective parties and I have also looked into the decisions cited at the bar with meticulous care. In 1998 C Cr. LR (SC) 368 (supra), it was held by the Apex Court that consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142 (c) arises - and can arise only once. ( 10 ) IN the aforesaid decision it was further held that besides the language of Sections 138 and 142 which clearly postulates only one cause of action there are other formidable impediments which negates the concept of successive causes of action. One of them is that for dishonour of one cheque there can be only one offence and such offence is committed by the drawer immediately on his failure to make the payment within fifteen days of the receipt of the notice served in accordance with clause (b) of the proviso to Section 138. One of them is that for dishonour of one cheque there can be only one offence and such offence is committed by the drawer immediately on his failure to make the payment within fifteen days of the receipt of the notice served in accordance with clause (b) of the proviso to Section 138. That necessarily means that for similar failure after service of fresh notice on subsequent dishonour the drawer cannot be liable for any offence nor can the first offence be treated as nonest so as to give the payee a right to file a complaint treating the second offence as the first one. At that stage it will not be a question of waiver of the right of the payee to prosecute the drawer but of absolution of the drawer of an offence, which stands already committed by him and which cannot be committed by him again ( 11 ) IT was again held by the Apex Court that having given our anxious consideration 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 reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, 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 preemptory action in exercise of his such right under clause (b) of Section 138, go on presenting the cheque so as to enable 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 Section 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. But, once he gives a notice under clause (b) of Section 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 drawner, expires. ( 12 ) IN (1999) 4 see 567 (supra) it was also held by the Apex Court following decision of Sadanandan Bhadran that the upshot of the discussion is, on the date when the notice sent by fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution thereafter, due to the clear interdict contained in Section 142 of the Act. ( 13 ) IN (2001) 6 see 8 (supra) the Apex Court following the decisions of Sadanandan Bhadran and Sil Import (supra) held thus, it is well-nigh settled 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. The question in this case is, did the payee issue notice within 15 days after the first dishonour of the cheque? The question can as well be put in another form. Was the notice dated 1/12/1995 within 15 days of the date of intimation from the [bank regarding dishonour, or was it sent after that period of 15 days? In fact, that is the crux of the issue involved in this case. The question can as well be put in another form. Was the notice dated 1/12/1995 within 15 days of the date of intimation from the [bank regarding dishonour, or was it sent after that period of 15 days? In fact, that is the crux of the issue involved in this case. ( 14 ) BUT ultimately the Apex Court dismissed the appeal holding that since a notice under Section 434 of the Companies Act was not issued within the period of 15 days from the date of receipt of the intimation from the bank regarding the dishonour of cheque that could not be treated as a valid notice under clause (b) of the proviso to Section 138 of the N. I. Act. ( 15 ) SIMILARLY, in case of Dalmia Cement (supra) the Apex Court took different approach since the respondent of that case by a letter intimated that the respondent only received one empty envelope without any content in it and thereafter requested the appellant to send the content, if any, and acting on such request, the appellant exercised their option to accept the averments made by the respondents in their letter dated 20/6/1998 and issued a fresh notice again presenting the cheque and in the aforesaid case, the respondents did not deny the issuance of their letter dated 20/6/1998 and despite admitting its content, they again opted to approach the High Court for quashing the proceedings merely upon assumption: presumption and conjectures and since they tried to blow hot and cold in the same breath, the Court refused to accept their plea on the basis of issuance of first notice which, in fact, they have not received. ( 16 ) BUT here in this particular case the fact situation is quite otherwise inasmuch as here in this case the petitioner received the first notice and even after the receipt of the first notice the complainant/opposite party did not exercise its option for filing the complaint within the period and they again presented the cheque allegedly as per the request of the petitioner and after that on the basis of that second notice, they have come up with a complaint petition which certainly will be regarded as a time barred in view of the decision of the Apex Court reported in Sadanandan Bhadran and Sil Import and in my humble opinion the decisions cited on behalf of the opposite party in the case of Uniplus India and Dalmia Cement have no manner of application in the fact situation of the present case. ( 17 ) THAT being the position, upon ultimate analysis of the materials available, I hold with certainty that in the instance case the petitioners complaint being filed on the basis of the second notice in clearly time barred and as such not maintainable in law. ( 18 ) ACCORDINGLY, the criminal proceeding lodged through complaint Case No. 1369 of 2001 cannot tie proceeded against the present petitioner and that should be quashed. Petition allowed.