Research › Search › Judgment

Punjab High Court · body

2011 DIGILAW 968 (PNJ)

Shyam Lal Mittal v. Karvi Stock Broking Limited

2011-04-01

NIRMALJIT KAUR

body2011
JUDGMENT Mr. Nirmaljit Kaur, J.: (Oral).- The petitioner-drawer has approached this Court through the present petition for quashing the complaint under Section 138 read with Section 142 of the Negotiable Instrument Act (for short, ‘the Act’) dated 30.10.2007 and the summoning order dated 3.11.2007 alongwith all consequential proceedings arising therefrom. 2. The facts of the case in hand are that the complainant company presented the above mentioned cheque with its bankers i.e. HDFC Bank, Karnal for its encahsment but the said cheque was returned back dishonoured vide dishonouring memo dated 19.7.2007 with the remarks “insufficient funds”. Again as per the instructions and assurance of the accused, the complainant company presented the above mentioned cheque with its bankers i.e. HDFC Bank Sector 35-C, Chandigarh for its encashment but to the surprise of the complainant company, the said cheque was again returned back dishonoured vide dishonouring memo dated 20.8.07 with the remarks “funds insufficient” received by the complainant company thereafter alongwith cheque through its bankers. 3. The petitioner while praying for quashing of the said complaint and summoning order contended that the cheque was earlier presented by the payee to the HDFC Bank, Karnal on 19.7.2007. Thereafter notice was served upon the drawer on 23.7.2007. However, the payee did not file a complaint within a statutory period of one month of the expiry of 15 days after the said notice and, therefore, it could not create cause of action by presenting the cheque for the second time with its bankers, namely, HDFC, Sector 35, Chandigarh which was dis-honoured on 20.8.2007. Therefore, the notice was served upon the drawer on 17.9.2007. Since the complaint was filed on 30.10.2007, it is beyond the period of limitation. Cognizance taken by the Court is debarred. In order to substantiate his arguments, the learned counsel has placed reliance on a judgment rendered by the Apex Court in Tameeshwar Vaishnav v. Ramvishal Gupta 2010(1) RCR (Criminal), 730. On that basis, it has been prayed that the complaint, summoning order and consequential proceedings be quashed. 4. Ms. Madhu P. Singh, learned counsel appearing for the drawer does not dispute either the facts of the case or the proposition of law laid down by the Apex Court in Tameeshwar Vaishnav’s case (supra). 5. I have heard the learned counsel for the parties. 6. 4. Ms. Madhu P. Singh, learned counsel appearing for the drawer does not dispute either the facts of the case or the proposition of law laid down by the Apex Court in Tameeshwar Vaishnav’s case (supra). 5. I have heard the learned counsel for the parties. 6. Under the provisions of Section 138 of the Act and proviso attached thereto, it is apparent that the cheque is required to be presented within a period of six months of its drawn or within the period of its validity, whichever is earlier. Clause (b) stipulates that the payee/holder in due course of cheque, should make demand for the payment of amount in question after giving a notice, in writing, to the drawer within 30 days of the receipt of information from the concerned bank regarding the return of cheque as unpaid. Clause (c ) says that in case the drawer fails to make the payment to the payee within 15 days of receipt of the said notice, the payee may file a complaint under Section 142 of the Act. Section 142 of the Act provides that the complaint after expiry of period of 30 days is not maintainable. 7. The issue is squarely covered by the ratio of the judgment rendered in the case of Tameeshwar Vaishnav’s case (supra) which reads as under: 15. The provisions of Section 138 and clauses (a), (b) and (c) to the proviso thereof indicate that a cheque has to be 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. Clause (b) indicates that the payee or the holder in due course of the cheque, has to make demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and clause (c) provides that if the drawer of the cheque fails to make the payment of the said amount of money to the payee or to the holder in due course of the cheque within 15 days of receipt of the said notice, the payee or the holder of the cheque may file a complaint under Section 142 of the Act in the manner prescribed. 16. 16. In the instant case, it is clear that the first notices were received by the Appellant on 14th June, 2006, whereas the complaints were filed on 10th July, 2006. It must, therefore, be held that the complaints were filed beyond the period of limitation and the learned Magistrate erred in taking cognizance on the complaints filed on the basis of the second notices issued on 7th June, 2006. Similarly, the High Court was also wrong in affirming the order of the learned Magistrate.” 8. The learned counsel does not dispute that the case in hand is squarely covered by the judgment of the Apex Court rendered in Tameeshwar Vaishnav’s case (supra). 9. Accordingly, the present petition is allowed. The complaint under Section 138 read with Section 142 of the Act dated 30.10.2007 and the summoning order dated 3.11.2007 alongwith all consequential proceedings arising therefrom are quashed. ---------0.B.S.0------------