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2010 DIGILAW 577 (AP)

Shyamlal Jain v. Evalchand Jain

2010-07-07

SAMUDRALA GOVINDARAJULU

body2010
Judgment 1. This is the complainant's appeal against acquittal of the accused/1st respondent recorded by the X Additional Chief Metropolitan Magistrate, Secunderabad in C.C.No.439 of 2005 by judgment dated 10.02.2009. The complainant/appellant filed complaint in the lower court against the accused alleging offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act). Most of the facts in this appeal are not in dispute. The only ground on which the lower court acquitted the accused is that the complaintwas premature. 2. Thus, the only point which arises for determination in this appeal is: Whether the complaint in this case was premature. 3. The accused gave Ex.P-3 cheque dated 11.04.2005 to the complainant for Rs.15,00,000/-. It is stated to be a post-dated cheque issued by the accused after borrowing Rs.15,00,000/- from the complainant under Ex.P-1 promissory note and Ex.P-2 undertaking letter and receipt-cum-acknowledgement. When the complainant presented the cheque for encashment after the date mentioned on it, it was dishonoured by banker of the accused on the ground of closure of account. Ex.P-4 is cheque return memo dated 15.04.2005 of the banker. Thereupon, the complainant got issued Ex.P-5 statutory notice dated 17.04.2005 to the accused by registered post. Ex.P-7 is postal receipt therefore and it reveals that the notice was registered on 19.04.2005. Ex.P-8 is certificate of posting to the effect that the letter was posted to the accused on 19.04.2005. Ex.P-6 is reply notice dated 04.05.2005 got issued by the accused to the complainant. On Ex.P-9 postal acknowledgement of the accused, date of receipt of the notice by the accused is not clear. In para-4 of the complaint, the complainant stated that the accused received the said legal notice on 20.04.2005 and that the accused did not repay the amount. The complaint was filed in the lower court on 06.05.2005 and sworn statement of the complainant was recorded by the lower court on the same date and cognizance of the offence was taken by the lower court on the same date. In para-4 of the complaint, there is correction in date of receipt of notice by the accused and in the list of documents appended to the complaint also, there is correction in date of portal acknowledgement. Though the notice Ex.P-5 is dated 17.04.2005, there is no dispute that it was dispatched to the accused by registered post and by certificate of posting on 19.04.2005. Though the notice Ex.P-5 is dated 17.04.2005, there is no dispute that it was dispatched to the accused by registered post and by certificate of posting on 19.04.2005. Ex.P-7 postal receipt shows that a registered letter was received in the post office at 1.30 p.m., or 13.30 hours on 19.04.2005. In the date stamp on Ex.P-9 postal acknowledgement, out of two digits in the date portion, only the first digit 2' is visible and the second digit is not visible. According to the 1st respondent/accused, Ex.P-9 postal acknowledgement is dated 22.04.2005. As per the original office note put up by the staff of the lower Court on the complaint before the then Presiding Officer of the lower court, the date of receipt of notice by the accused was 22.04.2005. It shows that after the said office note and after the lower court took cognizance of the offence and issued summons to the accused, there are unauthorised corrections in para-4 of the complaint as well as striking of date pertaining to the postal acknowledgement in the list of documents appended to the complaint. The office note was put up in the lower court on the basis of original complaint which was not interpolated. Therefore, the lower court rightly came to the conclusion that Ex.P-5 notice was served on the accused as per Ex.P-9 postal acknowledgement on 22.04.2005. If 15 days period allowed to the accused for payment under Section 138(c) of the Act are computed from 22.04.2005, then it follows that the complaint was presented on 14th day after issue of notice and the lower court took cognizance of the offence on 14th day after service of Ex.P-5 notice on the accused. In that view of the matter, the lower court came to the conclusion that the complaint was premature and that taking cognizance of the offence was also premature. 4. It is contended by the appellant's counsel that simply because the complaint was filed before expiry of notice period of 15 days contemplated by Section 138(c) of the Act, the complaint cannot be dismissed as premature. Reliance was placed on Narsingh Das Tapadia v. Goverdhan Das Partani AIR 2000 Supreme Court 2946 of the Supreme Court. 4. It is contended by the appellant's counsel that simply because the complaint was filed before expiry of notice period of 15 days contemplated by Section 138(c) of the Act, the complaint cannot be dismissed as premature. Reliance was placed on Narsingh Das Tapadia v. Goverdhan Das Partani AIR 2000 Supreme Court 2946 of the Supreme Court. In that case, the complaint was filed on 08.11.1994 before expiry of 15 days period provided under Section 138(c) of the Act, the cognizance of the case was taken only on 17.11.1994 after expiry of 15 days' statutory period and within the period of limitation. In L K Prabhavathi v. K.V. Sree Rama Murthy 2006 (2) ALD (Cri) 966, this Court indicated the course open to the Magistrate when the complaint was presented on 14th day after receipt of notice by the accused, to the following effect: "the payee or the holder in due course of the cheque, as the case may be, is not precluded from maintaining the complaint filed prior to the arising of the cause of action either praying the Court to keep the complaint pending on it's file or seeking return of the compliant for presenting it immediately after the cause of action arises to the complainant. Therefore, if a complaint if filed before arising of cause of action, it only means that the court will not take cognizance of the complaint till the time cause of action arises to the complainant." But, in the case on hand, the complainant/appellant was in a hurry. He filed the complaint on 06.05.2005, got his sworn statement recorded in the lower court on 06.05.2005 itself; and the lower court took cognizance of the offence on the same day i.e., on 06.05.2005 itself. The complainant could have asked the lower court to record his sworn statement on the next day or the lower court could have returned the complaint on the ground that the period provided under Section 138(c) of the Act did not expire. 5. When the period of 15 days after service of notice to the accused is given to the accused for payment of amount covered by the dishonoured cheque, the accused can validly make payment of the cheque amount till 12.00 midnight on the 15th day. 5. When the period of 15 days after service of notice to the accused is given to the accused for payment of amount covered by the dishonoured cheque, the accused can validly make payment of the cheque amount till 12.00 midnight on the 15th day. It is only thereafter cause of action will arise to the accused for filing complaint alleging the offence under Section 138 of the Act against the accused. Till 12.00 midnight on the 15th day, there is no occurrence of the offence at all. It is only default in payment of the cheque amount even after 15 days, which constitutes offence under Section 138 of the Act. Mere dishonour of cheque is no offence under Section 138 of the Act, and it is only default in repayment of the dishonoured cheque amount which attracts penal liability under that provision. In N. Venkata Sivaram Prasad v. M/s. Rajeswari Constructions 1996 CRI.L.J.3409, Division Bench of this Court, held: "UNDER Section 138, until and unless the criteria laid down therein are complied with, it would not constitute an offence. Proviso (c) clearly stipulates that the Section does not apply unless the drawer of the cheques fails to make the payment to the payee within 15 days of the receipt of the said notice. Thus, the payee has been given liberty to make the payment within 15 days of the receipt of the notice even though the cheque was returned by the Bank unpaid. Hence, the reading of Proviso (c) to Section 138 clearly denotes that it would not be an offence if the drawer pays the amount within a period of 15 days as a specified therein. In such circumstances, there could not have been any complaint alleging the violation of Section 138. The pre-offence period granted to the payee should be construed strictly, otherwise the very purpose of Section 138 (c) of the Negotiable Instruments Act would be frustrated. The complainant should be able to point out to the offence under Section 138 when the complaint was filed. When the complaint is filed even before the offence is completed, it cannot be said that the offence is made out and, therefore, such complaint is invalid in the eye of law." 6. The complainant should be able to point out to the offence under Section 138 when the complaint was filed. When the complaint is filed even before the offence is completed, it cannot be said that the offence is made out and, therefore, such complaint is invalid in the eye of law." 6. Having regard to the above legal position and factual aspects of the case, this Court is of the opinion that the complaint filed by the appellant in the lower court is premature and that there was no offence under Section 138 of the Act committed by the accused/1st respondent by the time of presentation of the complaint in the lower court and by the time the offence therein taken cognizance by the lower court. The lower court rightly acquitted the accused. There are no valid or legal grounds in this appeal to interfere with finding of acquittal recorded by the lower court. 7. In the result, the appeal is dismissed.