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2011 DIGILAW 836 (GAU)

Dipankar Das v. Chandra Mohan Jha

2011-10-10

TINLIANTHANG VAIPHEI

body2011
JUDGMENT Hon'ble Mr. Justice T. Vaiphei 1. Heard Mr. SP Mahanta, the Learned Counsel for the Petitioner. 2. None appears for the Respondents. 3. The revision petition is directed against the criminal proceeding registered as C.R. Case No. 999 (S) 08, under Section 138 of the Negotiable Instruments Act, 1881 pending before the learned Chief Judicial Magistrate, Shillong against the Petitioner on the ground, amongst others, that the complaint is hopelessly time barred. 4. The complaint was filed by the Respondent No. 1 alleging that he was having some business relation with the Petitioner and that the Petitioner, issued a cheque bearing No. 870508 for an amount of Rs. 20,00,000/- on 10.03.2007 payable at ICICI Bank Limited at Siliguri Branch in his favour. When the cheque was produced by the Respondent No. 1 before the Axis Bank, Shillong on 31.08.2007 for clearance through its Siliguri Branch, it was dishonoured on the ground of "insufficiency of fund" and was returned to the Respondent No. 1 on 15.09.2007, who thereafter issued a legal notice on 27.09.2007 through his counsel by registered post with AD card to the Petitioner asking him to clear the dues within 15 (fifteen) days of the receipt of notice. According to the Petitioner, on receipt of the notice, he sent his reply through his counsel on 16.10.2007 stating that a false and baseless claim had been made by the Respondent No. 1. However, the Respondent No. 1 chose to file the impugned complaint petition on 11.09.2008 under Section 138of the Negotiable Instruments Act, 1881 against him. The complaint was duly registered by the learned Chief Judicial Magistrate, Shillong on 21.01.2008 and the statement of the Respondent No. 1 was also recorded under Section 200 Code of Criminal Procedure. The learned Chief Judicial Magistrate, Shillong thereafter fixed 27.02.2007 for recording of the statement of the witnesses. Aggrieved by this, this revision petition has been filed. 5. The submission of Mr. SP Mahanta, the Learned Counsel for the Petitioner is that the complaint is hopelessly time barred inasmuch as the same was not filed within the time prescribed by the provision of 138 (c) of the Negotiable Instruments Act, 1881. He also contends that the learned Chief Judicial Magistrate, Shillong does not have the territorial jurisdiction to entertain the complaint petition. He therefore submits that the criminal proceeding is liable to be quashed even on these two grounds. 6. He also contends that the learned Chief Judicial Magistrate, Shillong does not have the territorial jurisdiction to entertain the complaint petition. He therefore submits that the criminal proceeding is liable to be quashed even on these two grounds. 6. The undisputed facts on record are that the cheque in question was signed by the Petitioner on 10.03.2007, which was presented before the Axis Bank by the Respondent No. 1 on 31.08.2007 for clearance. Such clearance was necessitated by the fact that the cheque was payable at the Siliguri Branch of the Axis Bank. However, the cheque was returned on 15.09.2007 on the ground of insufficiency of fund. Even though the cheque was returned to the Respondent No. 1 on 15.09.2007, the Respondent No. 1 apparently slept over the matter and filed a complaint petition only on 11.09.2008. It may be noted at this stage that the Respondent No. 1 had earlier issued a notice on 27.09.2007 upon the Petitioner, which was replied by the latter on 16.10.2007. Thus it is obvious that the complaint was filed almost one year after the returned of the cheque to the Respondent No. 1 and about eleven months after the issuance of the notice. These facts are not disputed nor can they be disputed. Thus it is obvious that the complaint was filed almost one year after the returned of the cheque to the Respondent No. 1 and about eleven months after the issuance of the notice. These facts are not disputed nor can they be disputed. Section 142 of the Negotiable Instruments Act, 1881 provides for cognizance of offences which is reproduced below: 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 writing made by the payee or, as the case may be, the holder in due course of the cherub; (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 offence punishable under Section 138.] I may as well reproduce Clause (b) of Section 138 of the Negotiable Instruments Act, 1881, which is in the following terms: (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. 7. A combined reading of Section 138 together with Section 142 of the Act plainly makes it clear that a complaint relating to bouncing of cheque shall have to be filed within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138. The Petitioner admittedly failed to make the payment of the amount due to the Respondent No. 1 within 15 (fifteen) days of the receipt of notice. As noted earlier, the notice was replied by the Petitioner on 16.10.2007. The Respondent No. 1 was expected to file the complaint petition within 15 (fifteen) days of the receipt of notice when the payment was not made. As noted earlier, the notice was replied by the Petitioner on 16.10.2007. The Respondent No. 1 was expected to file the complaint petition within 15 (fifteen) days of the receipt of notice when the payment was not made. No application has apparently been filed by the Petitioner for condoning the delay in filing the complaint petition. The complaint petition is annexed to the revision petition which is at Annexure-I. The record reveals that the delay was neither condoned nor sought to be condoned. 8. Under the circumstances, there is no difficulty in holding that the complaint entertained by the learned Chief Judicial Magistrate, Shillong registered as C.R. Case No. 999 (S) 08, under Section138 of the Negotiable Instruments Act, 1881 is time barred. Consequently, the learned Chief Judicial Magistrate, Shillong exceeded her jurisdiction in registering the complaint filed by the Respondent No. 1. As the revision can be allowed on this ground, it is not necessary to deal with the other submissions of the Learned Counsel for the Petitioner. 9. Resultantly, this revision petition succeeds. C.R. Case No. 999 (S) 08, under Section 138 of the Negotiable Instruments Act, 1881 pending before the learned Chief Judicial Magistrate, Shillong is accordingly quashed. Appeal allowed