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2011 DIGILAW 860 (GUJ)

Jayatubhai Abhalbhai Maida v. State of Gujarat

2011-12-27

M.R.SHAH

body2011
JUDGMENT : M. R. Shah, J. Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C") has been preferred by the applicant herein – original accused to quash and set aside the impugned complaint being Criminal Case No.1249/2008 pending in the Court of learned Judicial Magistrate, First Class, Talaja, for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N. I. Act”). 2. That respondent No. 2 herein – original complainant has lodged the impugned complaint being Criminal Case No. 1249/2008 in the Court of learned JMFC, Talaja against the applicant herein – original accused for the offence under Section 138 of the NI Act, for dishonour of the cheque dated 09.07.2008, which was returned with endorsement “referred to drawer”. It is to be noted that the aforesaid cheque dated 09.07.2008 was returned with an endorsement “referred to drawer” on 12.07.2008 and the complainant served the notice upon the accused on 28.07.2008 informing the applicant with respect of the dishonour of the said cheque and calling upon the applicant to make payment of the cheque amount. That thereafter again the complainant deposited the said cheque and again the same came to be dishonored on 17.10.2008. That thereafter the complainant served another notice dated 14.11.2008 upon the applicant – accused calling upon the applicant – accused to make the payment of the cheque amount and thereafter the impugned complaint/criminal case has been filed by the complainant against the applicant – accused for the offence under Section 138 of the NI Act. That in the said complaint, learned Magistrate has directed to issue summons against the applicant for the offence under Section 138 of the NI Act. Hence, being aggrieved and dissatisfied with the same, the applicant – accused has preferred the present Criminal Miscellaneous Application under Section 482 of the Cr.P.C. 3. Shri V. M. Pancholi, learned advocate appearing on behalf of the applicant – original accused has vehemently submitted that as such the impugned complaint filed by the complainant is barred by limitation. Hence, being aggrieved and dissatisfied with the same, the applicant – accused has preferred the present Criminal Miscellaneous Application under Section 482 of the Cr.P.C. 3. Shri V. M. Pancholi, learned advocate appearing on behalf of the applicant – original accused has vehemently submitted that as such the impugned complaint filed by the complainant is barred by limitation. It is submitted that the cheque in question was deposited by the complainant which came to be dishonored by the Bank on 09.07.2008 with an endorsement “referred to drawer” and as such the complainant served a notice upon the accused on 28.07.2008 informing the applicant – accused with respect to dishonour of the aforesaid cheque and calling upon the applicant to make payment. However, instead of instituting the complaint on the said notice, the complainant again deposited the cheque which came to be dishonored on 17.10.2008 and again the applicant was served with the notice on date 14.11.2008. It is submitted that therefore, the cause of action to file the complaint on non-payment of the cheque in question arose when the complainant served the first notice on 28.07.2008 and considering the limitation from that date, the impugned complaint is barred by limitation. It is submitted that complaint under Section 142(b) of the NI Act has to be filed within a month from the date of immediately following the day on which the period of 15 days from the date of receipt of the first notice by the drawer expires i.e. on completion of one month from the expiry of 15 days from the date of the receipt of the notice dated 28.07.2008. 3.1. Shri Pancholi, learned advocate appearing on behalf of the applicant has heavily relied upon the decision of the Hon’ble Supreme Court in the case of Sadanandan Bhadran v. Madhavan Sunil Kumar reported in (1998) 6 SCC 514 as well as the decision of the Hon’ble Supreme Court in the case of Krishna Exports and Ors. v. Raju Das reported in (2004) 13 SCC 498 . Shri Pancholi, learned advocate appearing on behalf of the applicant has also relied upon the decision of the Hon’ble Supreme Court in the case of Tameshwar Vaishnav v. Ramvishal Gupta reported in (2010) 2 SCC 329 as well as the decision in the case of Prem Chand Vijay Kumar v. Yashpal Singh and Anr. reported in (2005) 4 SCC 417 . reported in (2005) 4 SCC 417 . Relying upon above decisions and making above submissions, it is requested to allow the present Criminal Miscellaneous Application as the impugned complaint is barred by limitation. 4. Application is opposed by Shri Nirjar Desai, learned advocate appearing on behalf of the original complainant. Shri Desai, learned advocate has submitted that as such the first notice dated 28.07.2008 cannot be said to be a statutory notice under Section 138(b) of the NI Act. It is submitted that by giving notice dated 28.07.2008, the intention of the complainant was not to treat the same as statutory notice under Section 138(b) of the NI Act and it was only an intimation to the accused that the cheque in question is dishonored and informing the accused that if despite the said notice the cheque amount is not paid, the complainant would deposit the said cheque again. It is submitted that thereafter again the complainant redeposited the said cheque and thereafter when the same was dishonored again, the complainant served a statutory notice as contemplated under Section 138(b) of the NI Act on 14.11.2008 in which there is a specific reference to Section 138 of the NI Act and therefore, the notice dated 14.11.2008 only can be said to be a statutory notice under Section 138(b) of the NI Act and therefore, the limitation to file the complaint would start after completion of 15 days of receipt of notice dated 14.11.2008. It is submitted that therefore considering the starting point of limitation after completion of 15 days of the notice dated 14.11.2008 and after expiry of one month thereafter, the impugned complaint is within the period of limitation as provided under Section 142(b) of the NI Act. Therefore, it is requested to dismiss the present Criminal Miscellaneous Application. 4.1. Now, so far as the contention on behalf of the complainant that the earlier/first notice dated 28.07.2008 was not the statutory notice under Section 138(b) of the NI Act and the notice dated 14.11.2008 can only be said to be the statutory notice under Section 138(b) of the NI Act is concerned, Shri Pancholi, learned advocate appearing on behalf of the applicant has relied upon the decisions of the Hon’ble Supreme Court in the cases of Rajneesh Aggarwal v. Amit J. Bhalla reported in (2001) 1 SCC 631 ; Central Bank of India and Anr. v. Saxons Farms and Ors. reported in (1999) 8 SCC 221 ; and K.R. Indira v. Dr. G. Adinarayana reported in (2003) 8 SCC 300 and has submitted that as such the notice dated 28.07.2008 can only be treated as a statutory notice under Section 138(b) of the NI Act and therefore, the complainant was required to file the complaint within one month from the day immediately following the day on which the period of 15 days from the date of receipt of the first notice dated 28.07.2008 by the drawer expires. Therefore, it is requested to allow the present application. 4.2. Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State has requested to pass appropriate order considering the facts and circumstances of the case. 5. Heard learned advocates appearing on behalf of the respective parties at length. The short question which is posed for consideration of this Court is whether the first notice dated 28.07.2008 can be said to be a statutory notice under Section 138(b) of the NI Act and whether the limitation as provided under Section 142(b) of the N.I. Act would start on completion of 15 days from the date of receipt of the first notice dated 28.07.2008 or the notice dated 14.11.2008 (the second notice)? 5.1. It is to be noted that in the present case the cheque dated 17.04.2008 came to be dishonored by the Bank on 09.07.2008 with an endorsement “referred to drawer” and the intimation of the same was received by the complainant on 12.07.2008. That by notice dated 28.07.2008, the complainant served a notice upon the applicant – accused informing the applicant – accused with respect to dishonour of the aforesaid cheque and calling upon the applicant – original accused to make the payment of cheque amount and further informing the applicant – accused that if the cheque amount is not paid in that case he will again redeposit the cheque. That thereafter again the complainant re-deposited the said cheque in the month of October 2008 i.e. after a period of almost 6 to 7 weeks after the first notice dated 28.07.2008, which also came to be dishonored and the intimation of the same was received by the complainant on 18.10.2008. That thereafter again the complainant re-deposited the said cheque in the month of October 2008 i.e. after a period of almost 6 to 7 weeks after the first notice dated 28.07.2008, which also came to be dishonored and the intimation of the same was received by the complainant on 18.10.2008. That thereafter again the complainant served a notice dated 14.11.2008 upon the applicant – original accused calling upon the applicant to make the payment of cheque amount failing which he shall file complaint under Section 138 of the NI Act. That thereafter, after completion of 15 days from the date of receipt of notice dated 14.11.2008 and within a period of one month thereafter, the complainant has filed the impugned complaint. It is the case on behalf of the original complainant that as in the first notice dated 28.07.2008, there was no reference to Section 138 of the N.I. Act and the intention of the complainant was not to treat the said notice as notice under Section 138(b) of the N.I. Act and therefore, the notice dated 28.07.2008 cannot be said to be a statutory notice under Section 138(b) of the N.I Act and the second notice dated 14.11.2008 can only be said to be a statutory notice under Section 138(b) of the N.I. Act. The aforesaid has no substance and cannot be accepted. 5.2. As observed by the Hon’ble Supreme Court in the case of Saxons Farms and Ors. (Supra), the object of the notice as contemplated under Section 138(b) of the NI Act is to give a chance to the drawer of the cheque to rectify his omission. It is further observed by the Hon’ble Supreme Court that though no form of notice is prescribed in clause (b) of the proviso to Section 138, the requirement is that the notice shall be given in writing within 15 days of receipt of information from the bank regarding the return of the cheque as unpaid and in the notice demand for payment of the amount of the cheque has to be made. In the said decision, following last line of the notice was considered to be a clear demand required by clause (b) of Section 138 proviso. “kindly arrange to make the payment to avoid unpleasant action of my client.” 5.3. In the said decision, following last line of the notice was considered to be a clear demand required by clause (b) of Section 138 proviso. “kindly arrange to make the payment to avoid unpleasant action of my client.” 5.3. Similarly, in the case of Rajneesh Aggrawal (Supra), it is observed that the object of issuing the notice indicating the factum of dishonour of cheque is to give an opportunity to the drawer to make the payment within 15 days, so that it will not be necessary for the payee to initiate any criminal action, even though the bank dishonored the cheques. 5.4. Considering the notice dated 28.07.2008 in which the applicant – accused is specifically informed with respect to dishonour of the cheque and the applicant was called upon to make payment of cheque amount, it can be said to be a statutory notice under Section 138(b) of the NI Act. Merely because in the said notice there is no reference to Section 138 of the NI Act, that by itself, it cannot be said that the said notice cannot be considered as notice under Section 138(b) of the N.I. Act. For all purposes, the said notice dated 28.07.2008 can be said to be a notice under Section 138(b) of the N.I. Act and therefore, the complaint under Section 142(b) of the NI Act was required to be filed within one month from the day immediately following the day on which the period of 15 days from the date of receipt of the first notice by the drawer i.e. 28.07.2008 expires. 5.5. Considering the aforesaid when the first notice dated 28.07.2008 is required to be considered as a statutory notice under Section 138(b) of the N.I. Act, in that case, the complainant was required to file the complaint on or before 18.09.2008. However, in the present case, the impugned complaint has been filed on 15.12.2008 considering the second notice dated 14.11.2008 as a statutory notice under Section 138(b) of the N.I. Act, which cannot be accepted. 5.6. In the case of Sadanandan Bhadran (Supra), the Hon'ble Supreme Court has specifically observed and held that cause of action to file the complaint on non-payment despite issue of the notice, arises but once. It is further held that another cause of action would not arise on repeated dishonour on representation. 5.6. In the case of Sadanandan Bhadran (Supra), the Hon'ble Supreme Court has specifically observed and held that cause of action to file the complaint on non-payment despite issue of the notice, arises but once. It is further held that another cause of action would not arise on repeated dishonour on representation. It is further held in the said decision that payee is free to present the cheque repeatedly within its validity period, but once the notice has been issued and payment not received within 15 days of the receipt of the notice, payee has to avail the very cause of action arising thereupon and file the complaint. It is further held that dishonour of the cheque on each re-presentation does not give rise to a fresh cause of action and therefore, the complaint under Section 142(b) of the NI Act has to be filed within one month from the day immediately following the day on which the period of 15 days from the date of receipt of the first notice by the drawer expires. 5.7. A similar view has been expressed in the subsequent decisions in the case of Krishna Exports and Ors. (Supra) and in the case of Tameshwar Vaishnav (Supra). 5.8. Considering the aforesaid facts and circumstances of the case and the aforesaid decisions of the Hon'ble Supreme Court, the impugned complaint filed by the original complainant is filed beyond the period of limitation and therefore, the learned Magistrate has materially erred in taking cognizance on the said complaint which has been filed on the basis of second notice issued on 14.11.2008 and has materially erred in directing to issue summons against the applicant – accused for the offence under Section 138 of the N.I. Act. Under the circumstances, the impugned complaint filed by the original complainant which is beyond the period of limitation deserves to be quashed and set aside. 6. In view of the above and for the reasons stated above, present application succeeds. The impugned complaint being Criminal Case No.1249/2008 pending in the Court of learned Judicial Magistrate, First Class, Talaja against the applicant for the offence under Section 138 of the N.I. Act and the order passed by the learned Magistrate directing to issue summons upon the applicant in the said complaint for the offence under Section 138 of the N.I. Act are hereby quashed and set aside. However, the same shall be without prejudice to the rights and contentions of the original complainant to initiate appropriate proceedings for recovery of the cheque amount and as and when such proceedings are initiated the same be considered in accordance with law and on merits without in anyway being influenced by the present order, which is for quashing and setting aside the impugned complaint for the offence under section 138 of the N.I. Act. Rule is made absolute to the aforesaid extent. Application allowed.