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2009 DIGILAW 271 (CAL)

P. K. Shukla v. State

2009-03-31

SANJIB BANERJEE

body2009
Judgment :- (1) The petitioner challenges an order of conviction in proceedings, inter alia, under Section 138 of the Negotiable Instruments Act, 1881. The petitioner urges two grounds : that the complaint was filed before the period of 15 days had elapsed from the date of receipt of the notice of dishonour by the petitioner ; and that there was no debt or liability that the complainant had been able to demonstrate for a charge under Section 138 of the said Act to be pressed against the petitioner. (2) The complainant claimed that the cheque had been issued in the month of November, 2004 by way of a guarantee, assuring repayment of a loan obtained by another from the complainant. The cheque was dishonoured on February 15, 2006. Within the statutory period upon the complainant having knowledge of the dishonour, the notice of demand was issued on the petitioner herein on March 6, 2006 which the petitioner received on March 8, 2006. The complaint was filed on March 21, 2006, come 12 days after the date of receipt of the statutory notice and before the period covered by Clause (c) of the proviso to Section 138 of the said Act ran out. (3) By an order dated July 24, 2007 the Chief Judicial Magistrate found the petitioner guilty of the offence and he was sentenced to pay a fine of Rs. 1,25,000/- and in default to suffer simple imprisonment for a year. On appeal before the Sessions Judge, it was held that the Magistrate bad correctly concluded that the cheque had been dishonoured for insufficiency of funds and that all the ingredients of the offence were found to be in place for the conviction to be sustained. (4) The petitioner has applied under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 against the appellate order. The petitioner says that it is plain to see that the offence had not been committed by the time that the complaint was lodged and the premature complaint deserved summary dismissal and, certainly, no conviction to be handed down to the petitioner. The petitioner says that the petitioner did not obtain any loan from the complainant, nor was it the complainants case that the petitioner had obtained any loan from him and as such the primary ingredient of Section 138 of the Act was missing in the complaint. The petitioner says that the petitioner did not obtain any loan from the complainant, nor was it the complainants case that the petitioner had obtained any loan from him and as such the primary ingredient of Section 138 of the Act was missing in the complaint. (5) It is the admitted position that the Magistrate took cognizance on June 12, 2006. Section 142 of the said Act of 1881 sets down three conditions. In its first limb it stipulates that no Court shall take cognizance of any offence punishable under Section 138 of the Act except upon a written complaint made by the payee or the holder in due course of the cheque, as the case may be. The second clause requires the complaint to be made within a month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act. The final limb of Section 142 of the Act provides that only a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138 of the Act. (6) On behalf of the complainant, the judgments reported at AIR 2000 SC 2946 : 2000 C Cr LR (SC) 522 (Narasingh Das Tapadia v. Goverdhan Das Partani and Anr,), 1999 Cr LJ 1491 (Bhanwar Lal v. State of Rajasthan) and 2002 Cr LJ 1522 (Hem Lata Gupta v. State of U.P) have been placed for the proposition that the effective date is the date of the Magistrate taking cognizance of the offence rather than the date of the complaint. It appears so from the Narasingh Das Tapadia case that it is such principle that has been recognized at paragraph 7 of the report :-"7. The compliance of Clause (c) of proviso to Section 138 enables the Court to entertain a complaint. Clause (b) of Section 142 prescribes a period within which the complaint can be filed from the date of the cause of action arising under Clause (c) of the proviso to Section 138. The compliance of Clause (c) of proviso to Section 138 enables the Court to entertain a complaint. Clause (b) of Section 142 prescribes a period within which the complaint can be filed from the date of the cause of action arising under Clause (c) of the proviso to Section 138. No period is prescribed before which the complaint cannot he filed, and if filed not disclosing the cause of action in terms of Clause (c) of the proviso to Section 138, the Court may not take cognizance till the time the cause of action arises to the complainant." (7) Though Section 142 (b) of the said Act may suggest that a complaint has to be made upon the accrual of the cause of action under Clause (c) of the proviso to Section 138 of the Act, it is now concluded by the Supreme Court that there is no period that is prescribed before which the complaint cannot be filed. The facts in the Supreme Court case may be distinguished as the complaint in that case was returned after finding some defect in it and received subsequently. Since the complaint had originally been filed before the period of 15 days had elapsed from the date of receipt of the statutory notice of demand, the High Court had dismissed the same as being premature. However, the law as enunciated at paragraph 7 of the report is clear and unambiguous and implies that notwithstanding a complaint being filed prior to the accrual of the cause of action, the Court may not take cognizance till the time that the cause of action arises and it is only the date of the Court taking cognizance that is of significance. (8) In view of the law as appreciated by the Supreme Court and as followed by the Allahabad High Court in Hem Lata Gupta, the petitioners contention that the complaint was premature and as such the proceedings were stillborn, cannot be accepted. (9) The other ground urged by the petitioner is of no consequence. A guarantor remains as bound to the creditor as the principal debtor and it is open for the creditor to choose to proceed against the guarantor in preference to the principal debtor. (9) The other ground urged by the petitioner is of no consequence. A guarantor remains as bound to the creditor as the principal debtor and it is open for the creditor to choose to proceed against the guarantor in preference to the principal debtor. The liability of the guarantor and principal debtor are co-extensive and neither can the guarantor be heard to suggest that a creditor has first to seek the principal debtor nor can the guarantor deny the liability or indebtedness to the creditor unless the debt is shown to have been discharged. Section 139 of the said Act raises a presumption of indebtedness upon a cheque being made over by a drawer to the payee and it is for the drawer to rebut the presumption. The burden that the petitioner herein has sought to discharge is on a misappreciation of the legal principle and there is nothing on facts that the petitioner had demonstrated at the trial to rebut the presumption. (10) There is no merit in either ground put forth by the petitioner. CRR No. 033 of 2008 and all connected applications fail. (11) Let the Lower Court Records be sent down immediately along with a copy of this order.