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Allahabad High Court · body

2011 DIGILAW 1930 (ALL)

Anil Kumar v. State of U. P. & Another

2011-08-12

KASHI NATH PANDEY

body2011
Hon’ble Kashi Nath Pandey, J. : This revision has been filed against the order dated 16.8.2003, passed by Chief Judicial Magistrate, Ballia in Case No. 3099 of 2002, Shailesh Kumar Pandey Vs. Anil Kumar under section 138 of Negotiable Instruments Act, 1881, by which accused Anil Kumar has been summoned.2. I have heard the learned counsel for the revisionist, learned counsel for the opposite parties and perused the record.3. According to the complainant Anil Kumar had given cheque no. 200- 0425-11, dated 31.1.2002, Account No. 195, amounting to Rs. 3,54,000/- of Zila Sahakari Bank Ltd. Branch Ballia to the complainant. He deposited the same in Allahabad Bank, Ballia. According to the report of the Allahabad Bank, the cheque was deposited on 5.2.2002. It was returned on 1st March, 2002 on account of insufficiency of funds. Again it was deposited on 11.3.2002 and it was returned on 29.4.2002 on account of insufficiency of funds. Again it was deposited on 22.7.2002 and returned on 9.8.2002 on account of insufficiency of funds. In the oral statement the complainant stated that on the assurance of the accused to deposit the money in concerned Bank inspite of the fact that the cheque was dishonoured he had not filed any complaint, believing that the opposite party Anil Kumar will deposit the sufficient amount in the concerned Bank and he will be able to withdraw the amount through cheque given by Anil Kumar, but when the cheque was dishonoured third time he sent a notice and thereafter filed a complaint.4. Section 138. Dishonour of cheque for insufficiency.etc. Section 138. Dishonour of cheque for insufficiency.etc. of funds in the account.- 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 impriosnment for (a term which may be extended to two years), 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 in due 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 cheque as unpaid; and(c) the drawer of such cheque fails to make the payment of the said amount of money to the prayee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the saidnotice.Explanation ? For the purposes of this section,”debt or other liability’ means a legally enforceable debt or other liability.Section 142. For the purposes of this section,”debt or other liability’ means a legally enforceable debt or other liability.Section 142. Cognizance of offences- 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 wirting 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).(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.5. Learned counsel for the revisionist argued that when the cheque was dishonoured second time on 29.4.2002, the complainant had sent a notice dated 7.5.2002, there was no reason for the complainant to deposit the cheque third time to create a new cause of action after the cheque was dishonoured on 29.4.2002 and the notice dated 7.5.2002 had been sent to the revisionist, the cause of action began to run and the complaint dated 12.9.2002 is barred by time.6. Learned counsel for the revisionist specifically denied that his client had ever made any assurance to the complainant to deposit the amount in the concerned Bank. A photo stat copy of the registered post letter (Annexure-5) is on the record, which is dated 7.5.2002, then there was no reason for the complainant not to file the complaint and deposit the cheque third time being dishonoured and send a second notice for creating a new cause of action.7. Learned counsel for the opposite party argued that on the assurance of Anil Kumar he has not filed any complaint after 29.4.2002 within prescribed period under section 142(b), but this fact is not based on any substantive evidence as nothing was sent in writing by Anil Kumar in rersponse to his notice dated 7.5.2002. Therefore, on the point of fact it is apparent that the complaint dated 12.9.2002 is barred by time. Learned counsel for the parties relied on Saketh India Limited Vs. Therefore, on the point of fact it is apparent that the complaint dated 12.9.2002 is barred by time. Learned counsel for the parties relied on Saketh India Limited Vs. India Securities Limited, 1999 AIR (SC )1090. It has been held that the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires. In ACC 1998 (37) ACC page 574, Sadanandan Bhadran Vs. Madhavan Sunil Kumar, it has been held that although on each presentation of cheque and its dishonour a fresh right accrues but no cause of action accrues in favour of the complainant, once he has exercised his power by sending notice under section 138 proviso (c) of the Act. After dishonour of the cheque on 29.4.2002 and sending notice dated 7.5.2002 no new cause of action will arise after depositing the cheque on 22.7.2002 and its dishonour on 9.8.2002 and sending second notice dated 21.8.2002. According to Section 138 proviso ( c ) the drawer of such cheque fails to make the payment of 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, cause of action began to run. Thereafter within 30 days the complaint is to be filed as provided in section 142 (b). Thus, the period of limitation is 15 days of the receipt of the notice under proviso (c) to Section 138 plus 30 days under section 142 (b).8. I have gone through the complaint in which there is no reference of notice dated 7.5.2002, a photostat copy of which has been filed by the revisionist. Only reference of second notice dated 21.8.2002 has been mentioned in the complaint. The complainant can not rely on the second notice after the first notice dated 7.5.2002 had been sent by him. Except the oral statement of the complainant about the assurance made by Anil Kumar. There is nothing in writing in support this fact, therefore, there was no reason for the complainant to deposit the cheque again in Allahabad Bank, after he had sent the notice dated 7.5.2002.9. Except the oral statement of the complainant about the assurance made by Anil Kumar. There is nothing in writing in support this fact, therefore, there was no reason for the complainant to deposit the cheque again in Allahabad Bank, after he had sent the notice dated 7.5.2002.9. In view of above discussion the complaint dated 12.9.2002 is barred by time, therefore, the cognizance of the case could have not been taken by the Magistrate issuing summons to the revisionist/accused.10. Accordingly, the summoning order dated 16.8.2003 passed by the Chief Judicial Magistate, Ballia in case no. 3099/2002 is hereby quashed.11. Accordingly the revision is allowed._________