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2004 DIGILAW 404 (KAR)

V. R. PRAVEEN v. ISMAYIL

2004-06-29

K.A.ABDUL GAFOOR

body2004
( 1 ) THE prosecution launched under Section 138 of the Negotiable instruments Act ended in acquittal of the 1st respondent. Therefore, this appeal at the instance of the complainant. The reason for the acquittal was that the complaint was filed beyond the period of limitation provided for in Section 142 (b) as it then stood, before the amendment by Act 55/2002. ( 2 ) THE facts relating to the issue are as follows. Statutory notice was tendered for delivery on the accused and he refused it on 3-8-1996. Notice was received back by the complainant on 9-8-1996. On the 45th day from 9-8-1996, complaint was filed on 23-9-1996. Whether this is a belated complaint is the moot question. As per clause (b) of the proviso to Section 138 of the Act, the payee or the holder in due course of the cheque, as the case may be, shall make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque , within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. That notice has been duly issued. Ext. P6 is the notice. Then the payee has to wait for 15 days for the drawer to meet the demand for payment. Thus the 15 days have to be reckoned in terms of clause (c) of the proviso to Section 138 from the date of receipt of notice of notice by the drawer. In this case, the drawer did have the knowledge about the notice of demand on 3-8- 1996 when he refused to accept it. So, the payee had to wait until 18-8-1996. ( 3 ) THE period of 15 days has to be reckoned from 9-8-1996, when the complainant had received back the notice, the appellant submits. ( 4 ) CLAUSE (c) of the proviso to Section 138 is very categoric that 15 days for payment of the amount commences from the date of receipt of the notice. If in the case of refusal, it should be 15 clays from the date of refusal to accept the notice. The aforesaid fifteen days have therefore to be reckoned in this case from 3-8-1996, when the drawer refused to accept notice. If in the case of refusal, it should be 15 clays from the date of refusal to accept the notice. The aforesaid fifteen days have therefore to be reckoned in this case from 3-8-1996, when the drawer refused to accept notice. ( 5 ) THE period of limitation to file a complaint under Section 138 is mentioned in section 142. Clause (b) of Section 142 provides that a complaint shall be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. The cause of action arose on the 15th day from the date of receipt of notice or the refusal to accept notice. In this case, it was on 18-8-1996. The complaint had been admittedly field on 23-9-1996. So the complaint was beyond the period of limitation of one month as provided in clause (b) of Section 142. ( 6 ) THIS position is attempted to be got over by the appellant relying on the proviso to Section 142 (b) added by Act 55/2002 which provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if he complainant satisfies the Court that he had sufficient cause for not making the complaint within such period. It is contended that this being the period provided tor condonation of delay, necessarily, it is procedural law. Necessarily, that procedural law. as now stands shall be applied to pending cases, ( 7 ) IN support of this contention, reliance is placed on the ruling of the Supreme Court in Shiv Shakti Co-operative Housing Society v. Swaraj Developers (2003 (2) KLT 503 : ( AIR 2003 SC 2434 ). Much emphasis is placed on the following passage. "the stress on the amended Section 115 is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. No person has a vested right in the manner prescribed but has only the right of proceedings in the mariner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode without exception unless there is a different stipulation. No person has a vested right in the manner prescribed but has only the right of proceedings in the mariner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode without exception unless there is a different stipulation. " therefore in this case, the right or liability of the parties, as the case may be, has to be considered in the light of the proviso added to clause (b) of Section 142 by Act 55/2002. 1 am unable to agree with the same for 2 reasons. ( 8 ) ACQUITTAL was on 27-2-1999 taking into account the law then stood with regard to the launching of prosecution. The appeal was filed on 28-6-1999. Amendment Act was enforced with effect from 6-2-2003. This appeal could have been disposed of on a date immediately after June, 1999. Merely because of the pressure of work, as this appeal happened to be pending till now, there is no reason for the accused being prejudiced due to such long pendency. ( 9 ) MORESOVER, this is a case where a vested right had accrued on the accused because of the acquittal based on the law then in force. So, on any count, the decision in Shiv Shakti Co-operative Housing society v. Swaraj Developers ( AIR 2003 SC 2434 ) does not have any application. ( 10 ) FURTHER, the proviso specifically mentions that the complainant has to satisfy the court that he had sufficient cause for not making the complaint within such period. In spite of the enforcement of Act 55/2002 on 6-2-2003, till this date the appellant has not moved his little finger even to state any satisfying reason, whatsoever before this court to invoke that provision, if at all it could be applied. That means, the appellant has no satisfactory reason as well to offer, the appeal fails, Hence, the appeal is dismissed. Appeal dismissed. --- *** --- .