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Madhya Pradesh High Court · body

2011 DIGILAW 1440 (MP)

Prabha Soni v. Avinash Soni

2011-12-19

S.C.SINHO

body2011
Judgment 1. Appellant has filed this appeal 378 (4) of Cr.P.C for grant of special leave to appeal against the order of acquittal dated 10/08/2006 passed by CJM, Shahdol in criminal complaint case no. 1/03 where respondent is acquitted for the offence punishable u/s 138 of the Negotiable Instruments Act on the ground of limitation and regarding other allegations trial Court had given positive finding in favour of the complainant and found that complainant has proved his case fully. 2. It is undisputed that appellant was married with respondent however divorce has taken place between both the parties. A complaint was filed by the appellant/wife alleging that on 15/01/96 respondent/husband had issued a cheque for a sum of Rs. 15,000/-. The cheque was signed by the respondent and was deposited in Shahdol Kshetriya Gramin Bank (hereinafter shall be referred as ‘the Bank’) and was dishonoured due to insufficient fund in the account. It is important to note that the Bank dishonoured the cheque vide memorandum dated 20/06/96 Ex.P-3 on the ground of insufficient fund. However, an endorsement is also made and duly proved by Branch Manager PW-2 Arun Shrivastava that on 1/07/96 intimation of this memorandum was given to complainant. Complainant case is this that the intimation regarding insufficient fund was given to her on 1/07/96 and thereafter on 11/07/96 Ex.P-3 lawyer notice was sent by the complainant to the respondent. 3. Respondent took a legal objection that actually Ex.P-2 memorandum of the Bank was given to complainant on 20/06/96 and even then Ex.P-4 notice was given to him on 11/07/96 meaning by it was time barred. 4. In support of the appeal, learned counsel for appellant has submitted that the CJM was not right in dismissing the petition on the ground of limitation. The CJM lost sight of the fact that there is specific endorsement Ex.P-2 memorandum of the Bank that this memo was given to the complainant on 1/07/96 and thus, the period of limitation has to be reckoned from 1/07/96 i.e. the date on which the complainant received an information from the Bank. 5. The CJM lost sight of the fact that there is specific endorsement Ex.P-2 memorandum of the Bank that this memo was given to the complainant on 1/07/96 and thus, the period of limitation has to be reckoned from 1/07/96 i.e. the date on which the complainant received an information from the Bank. 5. Learned counsel for respondent/husband on the other hand submitted that it is admitted position that the Bank is functioning from house of complainant’s parents and aforesaid memorandum was issued by the Bank on 20/06/96 and in these backgrounds the intimation was given to complainant on 1/07/96 cannot be treated as a date of memorandum issued by the Bank. For resolution of the controversy, section 138 of Negotiable Instruments Act is relevant, it reads as under :- “138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may extend to two year], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) The payee or the holder induce course of the cheque, as the case may be, makes 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 cheques as unpaid, and (c) 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.” 6. On bare perusal of section 138 (b), it is clear that the payee or the holder in due course of the cheque has to be given notice demanding payment within 15 days of his receiving information regarding the return of the cheque as unpaid. The return of the cheque as unpaid should be for the reason that the amount in the credit of respondent was insufficient for payment. Further, drawer of the cheque can make payment within 15 days of receipt of the notice and if he fails to do so, he is liable to be prosecuted. The complaint alleging commission of the offence punishable u/s 138 of Negotiable Instruments Act can be filed by the holder of the cheque within 1 month of the arising of the cause of action. Provision of 138 (b) specifically says that “The payee or the holder induce course of the cheque, as the case may be, makes 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 cheques as unpaid” 7. It will be proper to reproduce para 13 and 14 of the judgment Prem Chand Vijay Kumar (M/s) Vs. Yash Pal Singh and another, 2005 (II) MPJR 46 as under: “13. One of the indispensable factors to form the cause of action envisaged in section 138 of the Act is contained in clause (b) of the proviso to that section. It will be proper to reproduce para 13 and 14 of the judgment Prem Chand Vijay Kumar (M/s) Vs. Yash Pal Singh and another, 2005 (II) MPJR 46 as under: “13. One of the indispensable factors to form the cause of action envisaged in section 138 of the Act is contained in clause (b) of the proviso to that section. It involves the making of a demand by giving a notice in writing to the drawer of the cheque “within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid”. If not such notice is given within the said period of 15 days, no cause of action could have been created at all. 14. Thus, it is well settled that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque.” 8. Learned CJM has given emphasis to the cross examination of PW-6 Arun Shrivastava where he has admitted that the information regarding dishonour of the cheque was given to complainant on telephone but she said that she will come in the Bank and collect Ex.P-3 memorandum therefore, actually appellant/complainant has received the intimation on 20/06/96 and as per her own case Ex.P-4 notice was given on 11/07/96 (not within 15 days) therefore, it is time barred. 9. I have minutely gone through the statement of PW-6 Arun Shrivastava, Branch Manager of the Bank who has specifically stated in para 2 of the examination-in-chief that vide Ex.P-3 memorandum dated 1/07/96 intimation was given to the complainant that respondent’s cheque was dishonoured due to insufficient fund however, in para 6 of the cross examination he has further stated that information about dishonour of the cheque was given to complainant on telephone and she said that she will come to collect the memorandum meanding by on 20/06/96 the intimation was given to the complainant about dishonour of the cheque. Shri Arun Shrivastava has simply admitted in para 6 of the cross examination that he intimated on telephone that respondent’s cheque is dishonoured but he has nowhere stated that this intimation was given by him on 20/06/96 itself. Shri Arun Shrivastava has simply admitted in para 6 of the cross examination that he intimated on telephone that respondent’s cheque is dishonoured but he has nowhere stated that this intimation was given by him on 20/06/96 itself. Moreover, on bare perusal of Ex.P-3 it is clear that there are about 21 reasons for dishonour of the cheque, even for sake of argument, it is presumed that complainant has received information on 20/06/96 that the cheque was dishonoured, it cannot be presumed that she knew that the cheque was dishonoured due to insufficient fund. The provision of 138 (b) is not that on getting knowledge regarding dishonour of the cheque is sufficient to issue notice but on receipt of clear and cogent information from the Bank regarding return of the cheque, on the basis of insufficient fund getting a knowledge that the cheque is dishonoured and getting a cogent and to the point of insufficient fund is different thing. 10. Shri Ghanshyam Sharma has placed reliance on 2009 (3) MPLJ 614 Kamla Rusiya Vs. State of M.P and another. In this case, admittedly a demand notice was not issued by the complainant within 15 days of receipt of information regarding dishonour of cheque but in the present case the dispute is this that whether complainant received the information on 20/06/96 or 1/07/96.