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2009 DIGILAW 281 (CAL)

Grasim Industries Limited v. STATE OF WEST BENGAL

2009-04-02

KISHORE KUMAR PRASAD

body2009
JUDGMENT 1. THIS application under Section 482 read with Section 401 of the code of Criminal Procedure is at the instance of M/s. Grasim Industries limited and is directed against the judgment and order dated 9th June, 2004 passed by the learned Additional Sessions Judge, 2nd Fast Track court, Bichar Bhavan, Calcutta in Criminal Revision No. 176/2003 holding that the proceedings initiated in Complaint Case No. 3109/2000 on the basis of complaint filed by the petitioner herein alleging infraction of sections 138/141 of the Negotiable Instruments Act was not maintainable on the ground of limitation. Therefore, the complaint, so filed by the petitioner herein was dismissed allowing the revisional application filed under Section 397 read with Section 399 of the Code of Criminal Procedure by the Opposite Party Nos. 2 and 3/accused persons herein. 2. NONE appeared for the Opposite Party No. 1 -State of West Bengal to resist the instant application. Learned Counsel appearing on behalf of the petitioner submitted that the learned Revisional Court failed to consider that the amended provisions of law appended in Section 142 of the Negotiable Instruments act is not applicable in the instant proceedings and the learned Judge came to a wrong finding that the complaint case filed by the petitioner was barred by limitation. The period of limitation has to be reckoned from 7.6.2000 that is the date on which the postal authority informed the petitioner vide letter dated. 7.6.2000 that the notice was served upon the Opposite Party Nos. 2 and 3 herein on 11.3.2000. As the complaint was filed on 6.7.2000, the same was well within time. Learned Counsel relied oh a decision of this court in the Case of Bhabani Shankaragarwal v. The State of West Bengal, reported in 2006 (2) C Cr LR (Cal) 355 and also on a decision of the Hon'ble apex Court in the case of Prem Chand Vijay Kumar v. Yashpal Singh and anr., reported in 2005 (4) Supreme Court Cases 417. 3. LEARNED Counsel appearing for the Opposite Party Nos. 3. LEARNED Counsel appearing for the Opposite Party Nos. 2 and 3/ accused persons on the other hand, submitted that the learned Revisional court had rightly taken the view that the requirements of Section 142 of the Negotiable Instruments Act which will operate prospectively were not met and as such the complaint was clearly barred by limitation and cognizance taken by the learned Chief Metropolitan Magistrate upon the said complaint was also bad in law. 4. LEARNED Counsel placed reliance on the two decisions of the hon'ble Apex Court, reported in 2008 (13) SCC 689 and 2008 (12) SCC 112 in support of his contention that the proviso appended to Clause (b) of Section 142 of the Negotiable Instruments Act contained a substantive provision and not a procedural one and as such it could not have been given a retrospective effect. A substantive law, as it is well settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation. There is nothing in the amendment made to Section 142 (b) by the act of 55 of 2002 that the same was intended to operative retrospectively. Infact, that was not the stand of the petitioner herein. Obviously, when the complaint was filed on 6.7.2000, the petitioner could not have foreseen that in future any amendment providing for extending the period of limitation on sufficient cause being shown would be enacted. 5. THE only point emerging for consideration in the instant application filed by the petitioner/complainant for setting aside the judgment and order of the learned Revisional Court dismissing the proceeding being No. 3109/ 2000 before the learned Metropolitan Magistrate, 3rd Court, Calcutta, is whether it was competent for the learned Chief Metropolitan Magistrate Calcutta to take cognizance of the alleged offence punishable under sections 138/141 of the Negotiable Instruments Act on the petition of complaint filed by the petitioner complainant beyond the period of specified in Section 142 (b) thereof, in the facts and circumstances of the present case. To put it somewhat differently when had the cause of action for the relevant complaint had arisen, in the facts and circumstances thereof. 6. THE opposite party No. 2 herein is a partnership firm and opposite party No. 3 is one of the partners of opposite party No. 2 firm. The said partnership firm had business in respect of Grasim Brand Cement with the petitioner/complainant company. 6. THE opposite party No. 2 herein is a partnership firm and opposite party No. 3 is one of the partners of opposite party No. 2 firm. The said partnership firm had business in respect of Grasim Brand Cement with the petitioner/complainant company. For discharging the lawful business liabilities against the bills raised by the petitioner-company, the said firm issued a cheque being no. 982220 dated. 29.2.2000 for Rs. 13,32,000/- drawn on UCO Bank, jadavpur Branch Kolkata under the signature of opposite party No. 3 in favour of the petitioner-company. 7. THE same was presented within the validity period to the HDFC bank, Wood Street Branch Kolkata for encashment, but the cheque was not honoured by the bank on the ground of "insufficient funds" on 2. 3. 2000. The petitioner-company through its General Manager (Marketing) sent a demand notice on 3. 3. 2000 under registered post with A/d but the acknowledgement card did not return back to the petitioner and accordingly the petitioner-company wrote letter to the Postal Authority to intimate about the date of service of the notice. The postal authority by letter dated 7. 6. 2000 informed the petitioner-company that the notice was served upon opposite party Nos. 2 and 3 on 11. 3. 2000. The opposite party Nos. 2 and 3 did not make payment of the amount of cheque. The complaint had been filed on 6. 7. 2000 before the learned Chief Metropolitan Magistrate. The learned Chief Metropolitan Magistrate upon perusal of the materials on record appears to have taken cognizance of the alleged offence directed issue of summons upon the opposite party Nos. 2 and 3 herein. The said opposite parties appeared before the Court of learned Magistrate and enlarged on bail. A petition had been filed on behalf of the opposite party nos. 2 and 3 before the learned trial Magistrate on 24. 5. 2001 for dismissal of the complaint and discharging them for the reason stated therein on the plea that the petition of complaint had been filed beyond the prescribed period. The said petition was heard from time to time and finally by order dated. 5. 8. 2003, the learned trial Magistrate had rejected the said petition for the reasons recorded therein. 8. BEING aggrieved by the order so passed by the learned metropolitan Magistrate, the opposite party Nos. The said petition was heard from time to time and finally by order dated. 5. 8. 2003, the learned trial Magistrate had rejected the said petition for the reasons recorded therein. 8. BEING aggrieved by the order so passed by the learned metropolitan Magistrate, the opposite party Nos. 2 and 3 herein/accused persons had preferred a revisional application and upon hearing the learned Lawyers appearing on behalf of the parties, the learned Additional sessions Judge, Second Fast Track Court, Bichar Bhaban, Calcutta (Revisional Court) vide its impugned judgment and order dated. 9. 6. 2004 had dismissed the complaint with a direction to discharge the opposite parties/accused persons on the plea that the petition of complaint had been filed beyond the prescribed period of limitation. Aggrieved by the aforesaid judgment and order of the revisional court, the petitioner/complainant has preferred this application for appropriate relief. 9. AS already indicated, on the relevant cheque being dishonoured, the petitioner/complainant had sent notice by registered post with A/d to opposite party Nos. 2 and 3 through its General Manager (Marketing) on 3. 3. 2000 demanding payment of the said amount of money. The opposite party/accused persons had received the said notice on 11. 3. 2000 as per information given by postal authority to the petitioner on 7. 6. 2000. In terms of Clause (c) of Section 138 of the Negotiable Instruments Act, the cause of action for the complaint should be deemed to have arisen on 26. 3. 2000. The complaint was to be filed within one month from 26. 3. 2000 under section 142 (b) of the Act that is by 26. 4. 2000. But the relevant complaint had been filed by the petitioner/complainant before the learned Chief metropolitan Magistrate Calcutta on 6. 7. 2000, beyond one month from the date on which cause of action for the relevant complaint apparently arose. The relevant complaint was prima facie time barred as such. But the question which crops up for consideration in the instant proceeding is whether the relevant complaint would indeed be time barred, in the special and peculiar undisputed facts and circumstances of the instant case, as indicated above. 10. The relevant complaint was prima facie time barred as such. But the question which crops up for consideration in the instant proceeding is whether the relevant complaint would indeed be time barred, in the special and peculiar undisputed facts and circumstances of the instant case, as indicated above. 10. UNDER the provisions of Clause (c) of Section 138 of the Act the cause of action for such-like complaint arises on the failure of the drawer "to make 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 15 days of the receipt of the said notice" given under Clause (b) thereof; and not before that. No such complaint can, therefore, legally be filed before the aforesaid period. That being so, the material and relevant date for accrual of cause of action for such-like complaint is the date of receipt of notice by the drawer. The complainant being the sender of the notice cannot clearly receive the same. The recipient of the notice under Clause (b) of section 138 of the Act must invariably be the drawer of the cheque, to whom it is given. Knowledge of the sender about the date of receipt of the notice by the drawer is, therefore, very much material as regards accrual of the cause of action for making such like complaint. The sender of the notice could clearly have no personal knowledge about the date of receipt of the same, unless the notice is sent by messenger and the receipt thereof is duly acknowledged by the person to whom it is sent. But in cases (as in the instant case), where notice is sent by registered post A/d, which is the usual mode of service; which could, in particular, hardly be avoided if the parties do not belong to the same place, the knowledge of the sender (complainant) about the date of receipt of such notice would invariably be dependent upon other agencies, namely, the Postal Department, which is obliged to return back the A/d card to the sender of the registered notice. But the promptitude and efficiency of the Postal Department is a matter which is an everybody experience for the people at large. More often than not, A/d card is hardly returned back to the sender (of registered notice)in time. But the promptitude and efficiency of the Postal Department is a matter which is an everybody experience for the people at large. More often than not, A/d card is hardly returned back to the sender (of registered notice)in time. Not infrequently, A/d card never reaches back the sender, necessitating correspondence with the Postal Department as to the delivery/service of the registered notice or the date of delivery/service of such notice. Not unoften, the somnolence of the Postal Authority could hardly be shaken within reasonable time in answering such query when the A/d card does not reach bake the sender. In such cases, such-like complaint is likely to fail for no fault of the complainant, but for the failure/laches on the part of the Postal Department. The purpose of the Act is, therefore, likely to be frustrated, in such circumstances, which could never possibly have been intended by the makers thereof. The question which thus naturally arises for consideration is whether the literal and mechanical way of construing Clause (c) of Section 138 of the relevant Act would be justified in law, in such circumstances. The knowledge of the sender of the notice about the date of receipt of the same being an essential requirement of fair-play and natural justice, the expression "within 15 days of the receipt of the said notice", used in the aforesaid provision, should clearly mean the date when the sender acquires the knowledge about the date of the receipt of the notice given by him under Clause (b) of the relevant provision. If a person is given a right to resort to a remedy within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually know about the date of accrual of cause of action for making a complaint before the competent court for seeking redress therefor, or else, it might be an absurd and unreasonable application of law. On the analogy of the decision of the supreme Court in K. P. Verghese v. Income Tax Officer, Ernakulam andanr., air 1981 SC 1922 , we must therefore, eschew literalness in the interpretation of Clause (c) of Section 138 of the Act and "try to arrive at an interpretation which avoid such absurdity and mischief and makes provision rational and sensible, unless or course, our hands are tied and we cannot find any escape from the tyranny of literal interpretation. " It is now well-settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result, which could never have been intended by the legislature the court may modify the language used by the legislature, or even "do some violence" to it so as to achieve the obvious intention of the legislature and produce a rational construction (vide Luke v. Inland Revenue commissioner, 1963 AC 557). The Court may also in such a case read into the statutory provision a condition which, though not expressed, is implicit as constituting the basic assumption underlying the statutory provision. It, therefore, seems to me that having regard to this well recognised rule of interpretation, a fair and reasonable construction of clause (c) of Section 138 of the Act should be read into it so that the expression therein "within 15 days of the receipt of the said notice" should be made to mean within 15 days from the date of knowledge of the sender about the receipt of the notice so that such-like complaint may not fail for default on the part of the Postal Department, without any fault on the part of the complainant. On such construction, cause of action for such complaint, so far as the complainant is concerned, would accrue on the failure of the drawer to make payment within fifteen days from the date of knowledge of the complainant about the receipt of the Notice by the former (drawer); which would neither be prejudicial to him (drawer-accused), rather beneficial to him as he would get longer time to make payment of the amount and thus avoid criminal liability for non-payment. It would indeed be in the interest of such-like complainant to file complaint for such offences within the prescribed period so that the same may not be turned down for having been filed beyond the prescribed period resulting in failure of the remedy available to him under the law on such technical ground. Such-like complainant would invariably be interested in seeing that the Court takes cognizance of the offence and issues process because that would be the culmination of the petition of complaint filed by him on the allegations made and could hardly allow his petition of complaint to be time barred to his own prejudice. At the same time, however, the complainant should exhibit due diligence and promptitude in securing knowledge within a reasonable period about the date of receipt of the notice sent by registered post A/d, without sleeping over the matter for an unreasonable period, in case of failure of the Postal Department to send back the A/d card and/or intimate the date of receipt of notice by the addressee within a reasonable period. In view of the discussions above, I am clearly of the view that the cause of action for the relevant complaint, so far as complaint is concerned, arose on the expiry of 15 days from 7. 6. 2000, the date of knowledge of the complainant about the receipt of notice by the opposite party Nos. 1 and 2/accused persons, sent under Clause (b) of Section 138 of the Act. The filing of the petition of complaint by the petitioner/ complainant within one month therefrom cannot, therefore, be held to be beyond the period specified in Section 142 (b) of the Negotiable instruments Act. 11. FOR the reasons aforementioned, the impugned judgment and order of the learned Revisional Court cannot be sustained. 12. THE result is that the instant application deserves to be allowed and I direct so. The order dated. 5. 8. 2003 passed by the learned Metropolitan magistrate, 3rd Court, Calcutta stands restored that is the complaint case being No. 3109/2000 is restored to the file of learned Metropolitan magistrate, 3rd Court, Calcutta and that of the judgment and order dated. 9. 6. 2004 of the Additional Sessions Judge, Second Fast Track Court passed in Criminal Revision No. 176/2003 stand set aside. 13. THE opposite party Nos. 9. 6. 2004 of the Additional Sessions Judge, Second Fast Track Court passed in Criminal Revision No. 176/2003 stand set aside. 13. THE opposite party Nos. 2 and 3/accused persons shall surrender before the Court of learned Metropolitan Magistrate, 3rd Court, Calcutta by 17.4.2009 and the learned Metropolitan Magistrate is at liberty to dispose of their bail application in accordance with law. 14. SINCE the complaint had been filed by the petitioner in the year 2000, the learned trial Magistrate is hereby directed to proceed that the trial of the relevant case with utmost expedition. He should seek to conclude the trial and dispose of the case, as early as possible, preferably with a period of six months from the date of communication of this order. Criminal Section is directed to send a copy of this order to the concerned trial Magistrate immediately for information and necessary action.