Research › Search › Judgment

Gujarat High Court · body

2012 DIGILAW 816 (GUJ)

Mansukhbhai Badhabhai Boricha v. State of Gujarat

2012-11-08

M.R.SHAH

body2012
JUDGMENT : M.R. Shah, J. Present application under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") for Leave to Appeal against the impugned judgment and order of acquittal dated 10.04.2012 passed by the learned Additional Chief Judicial Magistrate, Bhavnagar in Criminal Case No.4383 of 2000 by which the learned Additional Chief Judicial Magistrate, Bhavnagar has acquitted the respondent No.2 herein original accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act"). 2. Facts leading to the present Criminal Miscellaneous Application for Leave to Appeal/Appeal in nutshell are as under: 2.1. That the applicant herein original complainant filed a criminal complaint against the respondent No.2 herein original accused in the Court of learned Chief Judicial Magistrate, Bhavnagar for the offence under Section 138 of the Neotiable Instruments Act for dishonour of cheque dated 24.06.1999 which was numbered as Criminal Case No.4383 of 2000. It was the case on behalf of the applicant original complainant that the cheque No.005622 issued by the original accused for an amount of Rs. 3 lakhs drawn in favour of the complainant was deposited in the Bank which came to be returned. That again the said cheque was deposited which came to be returned by the Bank with the return memo on 30.08.1999. That the complainant sent a statutory notice as required under Section 138 of the Neotiable Instruments Act by RPAD on 10.09.1999 which came to be served upon the accused. That again thereafter the complainant served/issued a statutory notice on 01.03.2000 by RPAD which came to be served upon the accused and despite the service of the same, the accused neither replied to the same nor paid the cheque amount and therefore, it was submitted that accused has committed offence under Section 138 of the Neotiable Instruments Act. That the learned Magistrate directed to issue summons upon the accused and on service of the same, the accused appeared before the learned Magistrate. That plea of the accused was recorded at Exh.5 and he pleaded not guilty. Therefore, the accused came to be tried for the offence punishable under Section 138 of the NI Act. 2.2. That on behalf of the complainant he himself came to be examined at Exh.28. He also examined two witnesses Amrishbhai Rameshbhai Joshi and Faruqbhai Bachubhai Lakadiya at Exhs.62 and 63 respectively. Therefore, the accused came to be tried for the offence punishable under Section 138 of the NI Act. 2.2. That on behalf of the complainant he himself came to be examined at Exh.28. He also examined two witnesses Amrishbhai Rameshbhai Joshi and Faruqbhai Bachubhai Lakadiya at Exhs.62 and 63 respectively. He also produced the documentary evidences in support of his case to convict the accused under Section 138 of the Neotiable Instruments Act. Thereafter, the evidence of the complainant was closed. That thereafter, after the closure of the evidence, further statement of the accused under Section 313 of the CrPC was recorded. He denied that he has committed any offence as alleged under Section 138 of the Neotiable Instruments Act. It was the specific case on behalf of the accused that the complaint filed by the complainant is barred by law of limitation. Considering the fact that the first statutory notice was sent to the accused on 10.09.1999 and thereafter within a period of 45 days the complainant did not file the complaint for the offence under Section 138 of the Neotiable Instruments Act, it was submitted that the complaint is barred by law of limitation. Therefore, it was requested to acquit the accused. 2.3. Considering the fact that the first statutory notice was issued on 10.09.1999 by RPAD, which was immediately served upon the accused and thereafter within a period of 45 days the complaint was not filed, the learned trial Court by impugned judgment and order has acquitted the accused for the offence under Section 138 of the NI Act. 2.4. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Additional Chief Judicial Magistrate acquitting the respondent No.2 herein original accused for the offence under Section 138 of the Neotiable Instruments Act, the applicant original complainant has preferred the present application for Leave to Appeal under Section 378(4) of the CrPC along with the Appeal. 3. 3. Shri Devnani, learned advocate appearing on behalf of the applicant has submitted that after the service of the statutory notice, which was issued by RPAD on 10.09.1999, the accused requested the complainant not to file the complaint and to wait and therefore, the complainant waited and even thereafter also, when the accused did not make the payment of the cheque amount, again the statutory notice was issued on 01.03.2000 and after service of the said statutory notice when within 15 days the accused did not make the payment of the cheque amount, and thereafter within a period of one month the complaint has been filed, the learned Magistrate has materially erred in holding the complaint as time barred and/or barred by limitation prescribed under the Neotiable Instruments Act. It is further submitted that even the first statutory notice which was issued on 10.09.1999, the same was issued within a period of 15 days from the date of intimation by the Bank about return of the cheque and therefore, the learned Magistrate has materially erred in dismissing the complaint on the ground that the same is barred by law of limitation as provided under the Neotiable Instruments Act. Shri Devnani, learned advocate appearing on behalf of the applicant has also heavily relied upon the recent decision of the Hon'ble Supreme Court in the case of Msr Leathers v. S. Palaniappan reported in JT 2012 (9) SC 403 in support of his prayer to grant Leave to Appeal and to admit the present Criminal Appeal. It is submitted that as held by the Hon'ble Supreme Court in the aforesaid decision in the case of Msr Leathers (Supra), there can be more than two cause of action and till the validity period of the cheque, again and again the cheque can be deposited and each deposit of the cheque can be said to be a different and separate cause of action. Therefore, relying upon the aforesaid decision, it is requested to admit the present Criminal Appeal. 4. Heard Shri Devnani, learned advocate appearing on behalf of the applicant and Shri L.R. Poojari, learned Additional Public Prosecutor appearing on behalf of the respondent No.1 State of Gujarat. Therefore, relying upon the aforesaid decision, it is requested to admit the present Criminal Appeal. 4. Heard Shri Devnani, learned advocate appearing on behalf of the applicant and Shri L.R. Poojari, learned Additional Public Prosecutor appearing on behalf of the respondent No.1 State of Gujarat. It is not in dispute and it is an admitted position that the cheque was deposited on 24.06.1999 and 30.08.1999 and the intimation of the Bank with respect to the dishonour of the cheque was given to the complainant on 30.08.1999. It is also an admitted position that the complainant issued and served a statutory notice by RPAD upon the accused on 10.09.1999 and thereafter, again issued the statutory notice on 01.03.2000 and thereafter, considering the subsequent notice as cause of action as provided under Section 138 of the Neotiable Instruments Act, the complainant has filed complaint on 26.05.2000 against the accused for the offence under Section 138 of the Neotiable Instruments Act. As per Section 142 of the Neotiable Instruments Act, 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 cheque; and 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. Considering Section 138, more particularly, clause (c) of the proviso to Section 138 of the Neotiable Instruments Act, in a case where 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 validity, whichever is earlier, the payee or 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 the information by him from the Bank regarding the return of the cheque as unpaid; and the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the said notice. Thus, on fair reading of Section 138 of the Neotiable Instruments Act, a complainant is required to serve a statutory notice as per clause (b) of proviso to Section 138 within a period of 30 days with respect to information by him from the Bank regarding the return of the cheque as unpaid and when within 15 days from the receipt of the said statutory notice if the accused does not pay the cheque amount, in that case only, it can be said that the cause of action has arisen in favour of the complainant to file the complaint against the accused for the offence under Section 138 of the Neotiable Instruments Act. Therefore, after the service of the statutory notice as provided under clause (b) of proviso to Section 138, if within a period of 15 days, the accused does not make the payment of cheque amount, the complainant can file the complaint within a period of one month subject to applying by the complainant to condone the delay in filing the complaint. In the present case, admittedly, no such request to condone the delay has been made. Admittedly, within a period of 30 days after completion of 15 days of service of notice upon the accused, complainant has not filed the complaint. Under the circumstances, no illegality has been committed by the learned Additional Chief Judicial Magistrate in dismissing the complaint and/or acquitting the accused for the offence under Section 138 of the Neotiable Instruments Act on the ground that the complaint is barred by law of limitation as provided under the provisions of NI Act. 5. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of Msr Leathers (Supra) is concerned, the same shall not be applicable in the facts of the present case. In the case before the Hon'ble Supreme Court, it was a case where the cheque was again deposited and it was not the case before the Hon'ble Supreme Court that once statutory period provided for filing the complaint has gone, whether again on issuing the second notice the period of limitation can be considered from the second notice. Under the circumstances, on facts, the said decision will not be applicable. 6. Under the circumstances, on facts, the said decision will not be applicable. 6. In view of the above and for the reasons stated above, as there is no substance in the Criminal Appeal, as no illegality has been committed by the learned Additional Chief Judicial Magistrate in acquitting the accused for the offence under Section 138 of the Neotiable Instruments Act, Leave to Appeal is hereby refused. Hence, present Criminal Miscellaneous Application is rejected. Application Dismissed.