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2008 DIGILAW 847 (JHR)

Manoj Kumar v. State of Jharkhand

2008-07-31

D.K.SINHA

body2008
ORDER Sinha. J. -The petitioner has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. for the quashment of the entire criminal proceeding including the order impugned dated 13.6.2005 whereby the learned Judicial Magistrate having been satisfied with the materials on record after due enquiry under Section 202 Cr.P.C. found a prima facie case under Section 138 of Negotiable Instruments Act and directed summons to be issued to the petitioner and further for quashment of the order impugned dated 3.3.2006 passed by Shri R.K. Sinha, Judicial Magistrate, Ranchi and the subsequent proceeding of the petitioner Manoj Kumar. 2. The brief fact of the case was that the complainant O.P. No.2 lodged a written complaint on 2711.2004 before the Chief Judicial Magistrate, Ranchi alleging, inter alia. that the petitioner herein, in order to clear some pending dues issued two cheques bearing No. 256261 dated 25.5.2004 of Rs. 13,210/- and another cheque bearing No. 256265 dated 28.5.2004 of Rs. 21,000/- to the complainant O.P. No. 2. On the presentation of the aforesaid cheques by the complainant, it were dishonored for non-availability of sufficient funds in the account of the petitioner. Accordingly, a legal notice was sent to the petitioner by the O.P. No.2 followed by a reminder but since the petitioner did not pay the amount. the accused-petitioner committed offence under Section 138 of the Negotiable Instruments Act, 1881 according to the complamant’s case. 3. Learned Counsel appearing on behalf of the petitioner Mr. Ashutosh Anand submitted that the cheques in questions were illegally retained by the complainant-O.P. No.2 in spite of the fact that the business between the two was settled without pending dues. Yet. the complainant O.P. No.2 retained the same and impressed that the cheques were misplaced and assured to return to the petitioner in the event it were traced out. 4. The petitioners came to know through the legal notice dated 10.6.2004 that the complainant had illegally presented the said cheques for encashment which were dishonoured and the petitioner was called upon by the said legal notice to pay the amount of the cheques within 15 days. Learned Counsel submitted that as the petitioner was sought to receive the said legal notice, he immediately replied on 15.6.2004 wherein the factum of alleged dues was specifically denied. Yet, it was requested to return the cheques and abstain from harassing the petitioner but without any response. Learned Counsel submitted that as the petitioner was sought to receive the said legal notice, he immediately replied on 15.6.2004 wherein the factum of alleged dues was specifically denied. Yet, it was requested to return the cheques and abstain from harassing the petitioner but without any response. The petitioner received another legal demand notice dated 20.10.2004 for the same and similar cause of action with the averment that the cheques in question were again presented and the same were again dishonoured and the demand for payment in cash was reiterated with the caution that he would be indulged in litigation failing to make payment. 5. The petitioner again replied by his letter dated 25.10.2004 reiterating his earlier stand. Yet, without examining the pros and cons as well as legality of the demand notice the complainant O.P. No.2 filed complaint No. C-11 03/04 against the petitioner and cognizance of the offence under Section 138 N.I. Act was taken in mechanical manner by the Judicial Magistrate on 13.6.2005. 6. On the point of law Mr. Anand submitted that complaint was to be made within one month from the date on which the cause of action arose under Section 142 as per clause (C) of the proviso to Section 138 of N.I. Act, 1881. Mr. Anand interpreted that the cause of action accrued on the date when in spite of receipt of the legal demand notice issued by the holder of the cheque, the same could not be paid within 15 days and accordingly the complaint ought to be filed within one month from the date when cause of action accrued. There may be only one cause of action and second cause of action cannot be created by sending a second legal notice Mr. Anand further submitted that similar situation fell for consideration and the Apex Court in "Prem Chand Vijay Kumar vs. Yashpal Singh & Another", reported in 2005 Supreme Court Cases (Criminal) 1153 observed:- Clause (a) of the proviso to Section 138 does not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. Anand further submitted that similar situation fell for consideration and the Apex Court in "Prem Chand Vijay Kumar vs. Yashpal Singh & Another", reported in 2005 Supreme Court Cases (Criminal) 1153 observed:- Clause (a) of the proviso to Section 138 does not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. This apart, in the course of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after sometime, on his own volition or at the request of the drawer, in expectation that it would be en-cashed. The primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which, normally, is taken out of compulsion and not choice. On each presentation of the cheque and its dishonour, a fresh right-and not a 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 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 as 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. 7. It was further observed therein in respect of the cause of action under the Act:- "In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) "cause of action" means every fact which it is necessary to establish to support a right or obtain a judgment. Viewed in that context, the facts which are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Act are (a) that the cheque was drawn for payment of an amount of money for discharge of a debt! Viewed in that context, the facts which are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Act are (a) that the cheque was drawn for payment of an amount of money for discharge of a debt! liability and the cheque was dishonoured; (b) that the cheque was presented within the prescribed period; (c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and (d) that the drawer failed to make the payment within 15 days of the receipt of the notice. Proceeding on the basis of the generic meaning of the term "cause of action", certainly each of the above facts would constitute a part of the cause of action but clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. A combined reading of Sections 138 and 142 makes it clear that cause of action 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(b) arises-and can arise only once." 8. By invoking the inherent jurisdiction, the petitioner has raised the point of law in relation to maintainability of his criminal prosecution for the alleged offence under Section 138 Negotiable Instruments Act, 1881. 9. Heard Mrs. C. Prabha, learned A.P.P. on behalf of the State. 10. According to the prosecution case the cheque No. 25626/- of Rs. 13.210/-was issued on 25.4.2004 and another cheque No. 256265/- of Rs. 21,000/- dated 28.5.2004 were presented at the Doranda Branch of Allahabad Bank on 5.6.2004 which returned unpaid on account of insufficient fund. Both the cheques were again presented on 13.10.2004, which met the similar fate. 11. The complainant sent a legal notice dated 10.6.2004 at the first instance to the petitioner about the return of cheques unpaid due to insufficient fund in the bank account of the petitioner and the petitioner was called upon to liquidate the total dues within 15 days from the receipt of notice. 11. The complainant sent a legal notice dated 10.6.2004 at the first instance to the petitioner about the return of cheques unpaid due to insufficient fund in the bank account of the petitioner and the petitioner was called upon to liquidate the total dues within 15 days from the receipt of notice. It is evident from the Annexure-3 which is the reply of the legal notice in which the petitioner stated that as there was no dues against him. The complainant was requested to return the cheques and not to harass him unnecessarily in the given facts and circumstances of the case. The subsequent legal notice dated 20.10.2004 indicates that the cheques were again presented on 13.10.2004 which met similar fate and the petitioner was called upon to liquidate the total dues along with 12% interest thereon within 15 days failing to which it was cautioned that criminal case would be instituted against him. The petitioner by way of reply dated 25.10.2004 of the second legal notice reiterated his earlier stand and requested to return the cheques and not to harass unnecessarily. Thereafter the complaint was filed on 27.11.2004 by the complainant O.P. No.2 against the petitioner. The first legal notice dated 10.6.2004 was received by the petitioner within 5 days as the reply of the notice was made on 15.6.2004. Similarly, I find that the second notice dated 20.10.2004 was replied within 5 days on 25.10.2004 but the complaint was filed after 5 months 12 days of the first legal notice. 12. Section 142 of the Negotiable Instruments Act, 1881 deals with cognizance of offence which speaks: "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.]" 13. Proviso (c) of Section 138 of the. Proviso (c) of Section 138 of the. Negotiable Instruments Act speaks; "that nothing contained in this section shall apply unless 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 in relation to the payment of unpaid cheques by the drawer, or the holder in due course as the case may be." 14. Admittedly, the petitioner did not liquidate the cheques amount by making payment to the complainant O.P. No.2 but at the same time I find that the complainant failed to present the complaint within the statutory period of one month of the date on which the cause of action arose under clause (c) of the proviso to Section 138. 15. According to the proposition of law as referred to above, and relied upon by the learned Counsel for the petitioner, the implication was to be reckoned by the composite reading of Sections 138 and 142 of the Negotiable Instruments Act which leaves no room for doubt that the cause of action within the meaning of Section 142(b) arose only once when the legal notice was sent to the petitioner on 10.6.2004 at the first instance disclosing that the cheques which were issued by the petitioner returned unpaid and accordingly the petitioner was called upon to liquidate the cheques amount within 15 days. 16. Law as laid down by the Apex Court In Prem Chand Vijay Kumar vs. Yashpal Singh & Another (supra) that once a notice is given under clause (b) of Section 138, right of the complainant is restricted to file the complaint within the stipulated time and in this case I find that though the complainant O.P. No. 2 had issued legal notice to the petitioner on 10.6.2004 at the first instance which was received by the petitioner within 5 days, but the case was instituted after 5 months of the said notice. The learned Judicial Magistrate also without appreciating the legal provisions in relation to limitation passed an order erroneously under Section 204 of the Code of Criminal Procedure directing the processes to be issued against the petitioner which cannot sustain under the facts and circumstances. The learned Judicial Magistrate also without appreciating the legal provisions in relation to limitation passed an order erroneously under Section 204 of the Code of Criminal Procedure directing the processes to be issued against the petitioner which cannot sustain under the facts and circumstances. Now it is well founded that the complaint was filed much beyond the statutory period 2nd even no explanation was given about inordinate delay of more than five months, and there was no prayer for condonation of delay. In view of that, the Complaint Case No. 1103 of 2004 and the criminal proceeding of the petitioner are set aside, accordingly quashed. 17. This Criminal Miscellaneous Petition is allowed.