Research › Search › Judgment

Uttarakhand High Court · body

2011 DIGILAW 542 (UTT)

M. C. GUPTA v. STATE OF UTTARANCHAL

2011-08-27

SERVESH KUMAR GUPTA

body2011
JUDGMENT By way of this criminal application, the prayer has been made to quash the order of cognizance dated 4.2.1997 passed by the Civil Judge (Junior Division) Rishikesh in criminal complaint case no. 236 of 1996, M/s. Prestige Lights Ltd. Vs. M/s. Gupta Agencies. 2. Heard learned counsel for the parties and perused the material available on record. 3. Factual matrix, qua the controversy behind the entire episode, is that there were business terms between M/s. Gupta Agencies and M/s. Prestige Lights Limited. The latter manufacturers the electric goods while the former was a dealer of M/s. Prestige Lights. Certain goods were supplied by M/s. Prestige Lights to M/s. Gupta Agencies and in consideration, as a price of those goods, a cheque No. QVJ/347109 dated 23.5.1995 was issued by M/s. Gupta Agencies to M/s. Prestige Lights Ltd. To the tune of Rs. 1.10 lacs. That cheque, while presented for encashment, was dishonoured by the bank concerned due to insufficiency of funds in the account of drawer of the same. 4. Thereafter a notice dated 27.6.1995 was sent on behalf of M/s Prestige Lights by Sri M.K. Goyal, Managing Director to Sri M.C. Gupta, the proprietor of M/s. Gupta Agencies. For probity, it would be expedient in the interest of justice to reproduce the language of that letter as it is :- “Dear Sir, Your Cheque No. QVJ 347109 dated 23.5.95 for Rs. 1,10,000/- has been returned to us as unpaid by your Bank, due to shortage of funds. We regret that a person like you should also not keep its commitment. As you know, under Section 138 of Negotiable Instruments Act, it is a criminal offence, if the Cheque is returned as unpaid and you know that there is severe penalty against this offence. You are therefore requested to please send us the Demand Draft for this payment immediately, otherwise we will have no option, but to send you a legal notice and there-after lodge a criminal complaint against you. We hope you will understand the gravity of the situation very well and will contact us on telephone immediately.” 5. You are therefore requested to please send us the Demand Draft for this payment immediately, otherwise we will have no option, but to send you a legal notice and there-after lodge a criminal complaint against you. We hope you will understand the gravity of the situation very well and will contact us on telephone immediately.” 5. After sending this notice, the payment was not received by M/s. Prestige Lights and another notice dated 1.1.1996 was again sent by M/s. Prestige Lights to M/s. Gupta Agencies, paragraph 3 whereof states that when the Cheque was submitted to the State Bank, it was dishonoured and returned to the Drawee on dated 19.12.1995 due to insufficiency of funds. 6. Through this notice, the payment was asked within 15 days of the receipt of the same. Since M/s. Gupta Agencies did not make any payment, as asked in the notice dated 1.1.1996, so within one month, as stipulated by the provisions of Section 142(b) of the Negotiable Instruments Act, 1881 (hereinafter will be referred as the Act), the complaint was filed on dated 31.1.1996 and after having the evidence u/s 200 and 202 Cr.P.C., the impugned order of cognizance dated 4.2.1997 has been passed. 7. It is also pertinent to mention that as per law, prevailing at that time, the objections were raised by M/s. Gupta Agencies against the order of cognizance before the Magistrate court itself but those objections were rejected on merits and the Magistrate was of the view that the complaint was well within the time limitation. M/s. Gupta Agencies filed a revision before the court of Sessions and that too was dismissed, inter alia, as not maintainable on the basis of law laid down in the case of “Subramaniam Vs. State of Maharashtra, 2005 (51) ACC Page 684” besides “Adalat Prasad Vs. Rooplal Jindal and others reported in (2004) 7 S.C.C. 338”. 8. Feeling aggrieved by the order of Magistrate as well as that of the Sessions Judge, this petition has been filed. 9. Learned counsel of the petitioner has contended that the first notice dated 27.6.1995 was a valid and legal notice, as envisaged by section 138(b) of the Act and the complaint by M/s. Prestige Lights Ltd. Could have been filed within 45 days from the date of receipt of this notice by the applicant. 9. Learned counsel of the petitioner has contended that the first notice dated 27.6.1995 was a valid and legal notice, as envisaged by section 138(b) of the Act and the complaint by M/s. Prestige Lights Ltd. Could have been filed within 45 days from the date of receipt of this notice by the applicant. This notice was a perfect notice, as required under the provisions of Section 138(b) of the Act, inasmuch as, the amount of Rs. 1.10 lacs was specifically mentioned in the first line of the notice and the drawee of the cheque was asked to make the payment of the Cheque immediately. It gives an impression that M/s. Gupta Agencies was asked to make the payment within the time limit of 15 days, as envisaged by the provisions of Section 138(c) of the Act. He also relied upon the precedent of Hon’ble Apex Court in the case of “Sil Import, USA Vs. Exim Aides Silk Exporters, Bangalore reported in 1999 SCC (Crl) 600”, wherein it was held that the limitation period for filing the complaint u/s 142(a) of the Act is commenced on the expiry of 16 days time from the receipt of the first notice, even if sent by fax and that the complaint can be filed within one month from the date of receipt of the notice by fax. The copy of notice sent by registered post thereafter cannot start a fresh limitation period. The receipt of the notice by fax itself is sufficient within the meaning of Section 138 of the Act for reckoning the period of limitation. 10. He also relied upon another precedent to Hon’ble Apex Court in the case of “Sadanandan Bhadran Vs. Madhavan Sunil Kumar reported in 1998 (3) Crimes 217 (SC)”, wherein it was held that in the matters of prosecution u/s 138 of the Act, Cheque can be presented any number of times during period of its validity but cause of action for initiation of prosecution arises only once – That is on failure to pay money by drawer after demand notice. Each presentation and dishonour does not give rise to fresh cause of action but fresh right. Once notice under Section 138 issued, failure to initiate prosecution within time would forfeit such right. Again after fresh presentation of cheque and dishonour and notice thereon, prosecution is not permissible. 11. Each presentation and dishonour does not give rise to fresh cause of action but fresh right. Once notice under Section 138 issued, failure to initiate prosecution within time would forfeit such right. Again after fresh presentation of cheque and dishonour and notice thereon, prosecution is not permissible. 11. Learned counsel of the petitioner has relied upon other judgments also, which are being cited as under :- 1. German Remedies Ltd. Vs. Harish C. Duggal Agencies, 1997 (1) Crimes 421. 2. Central Bank of India & another Vs. Saxons Farms & others, 1999 (3) A.Cr.R. 2287 (S.C.). 3. M/s. K.J. Cosmetics Ltd. Vs. State of Uttaranchal & others, 2008 (1) U.D. 359. 4. Naresh Kumar Vs. State of Uttaranchal & others, 2009 (2) U.D. 287. 12. In all those judgments, the ratio, which has been pronounced by the Courts, is that the cause of action arose only once and by giving a fresh notice, the cause of action cannot be revived. Although the right to money exists but right to recover that money by launching the legal prosecution is lost. 13. Learned counsel on behalf of the respondent has argued that the notice dated 27.6.1995 was not in the spirit, as envisaged by Section 138(b) of the Act. He also cited the following precedents :- 1. Suman Sethi Vs. Ajay K. Churiwal and another, AIR 2000 Supreme Court 828. 2. K.R. Indira Vs. D. G. Adinarayana, AIR 2003 Supreme Court 4689. 3. Rahul Builders Vs. Arihant Fertilizers and Chemicals and another (2008) 2 Supreme Court Cases 321. 14. By going through all these judgments, relied upon by the learned counsel of the private respondents, the position of law has not been differently interpreted. In all these Rulings, the notice sent by the drawee was not deemed for commencing the limitation due to the reason because it did not mention the specific demand of money therewith a period for payment stipulated under the provisions of the Act, was also not mentioned in these notices. Then in that case, such a notice was held not to be a legal notice as envisaged by the provisions of Section 138(b) of the Act. 15. Having carefully gone through the notice dated 27.6.1995, in the instant case, the intention of the Drawee of Cheque is as much clear as he sent this notice to demand Rs. Then in that case, such a notice was held not to be a legal notice as envisaged by the provisions of Section 138(b) of the Act. 15. Having carefully gone through the notice dated 27.6.1995, in the instant case, the intention of the Drawee of Cheque is as much clear as he sent this notice to demand Rs. 1.10 lacs, i.e. amount of Cheque dated 23.5.1995 and the said demand was made to make the payment immediately. It is not the intention of the Legislature that specific period of 15 days should have been mentioned in this notice. The word ‘immediately’ covers the period within 15 days. So, this Court is of the view that this was perfectly a legal and valid notice, as has been envisaged u/s 138(b) of the Act and the complaint should have been filed for recovery of the said money within 45 days from the date 27.6.1995 mentioned in the notice. Instead, the complaint was filed on 31.1.1996. This way, this complaint is time barred and the cognizance order dated 4.2.1997 made on the basis of such a complaint cannot be allowed to exist. 16. For the reasons as aforementioned, the petition deserves to be allowed. It is allowed. Order of cognizance dated 4.2.1997 and the proceedings of complaint case no. 236/1996, titled aforementioned, are quashed hereby.