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2013 DIGILAW 381 (JK)

Vikram Singh v. Chain Chand

2013-07-09

ALI MOHAMMAD MAGREY

body2013
1. In the instant petition, the petitioner is seeking quashment of criminal proceedings initiated against him in complaint titled Chain Chand v. Vikram Singh, under section 138 of the Negotiable Instruments Act, 1881 (for short Act of 1881), pending in the Court of CJM Udampur, as also order dated 30.05.2007 by which the application of the petitioner for dropping of proceedings stands dismissed. 2. The facts which have given rise for filing of the instant petition are detailed out as under: 3. The petitioner issued account payees cheque for a sum of Rs. 50,000/- in the name of the respondent vide cheque dated 22.10.2005, drawn on UTI Bank Ltd., Jammu. It appears that the cheque was dishonored by the Bank. Consequently, the respondent, through his advocate, Mr. Sohan Lal from Udhampur, send a notice dated 08.12.2005 under reference No. 777 to the petitioner herein, demanding the sum of Rs. 50,000/- within a period of thirty days on account of the dishonour of the cheque. Petitioner submits that the respondent send second notice/reminder dated 07.02.2006 bearing reference No. 999 through his advocate Mr. Sohan Lal, wherein respondent, claimed that the first notice stands received by the petitioner which was acknowledged by him on Cell phone. As per the second Notice, demand was made for payment of Rs. 50,000/- within a further period of thirty days. 4. Thereafter, the respondent filed a complaint on 02.03.2006 u/s 138 of the Act of 1881 against the petitioner in the Court of CJM, Udampur. The CJM Udampur has taken cognizance of the complaint and issued process for appearance of the petitioner. Petitioner submits that, on appearance, he filed an application seeking dismissal of the complaint under the provisions of the Act of 1881 on the ground that same is not maintainable. But the trial Court dismissed the application on the ground that the complaint cannot be dismissed at the threshold without recording evidence. 5. Feeling aggrieved of order dated 02.03.2006, whereby CJM Udampur, issued process against the petitioner on the complaint filed by respondent u/s 138 of the Act of 1881 as also against the order dated 30.05.2007, whereby the application of the petitioner, seeking dismissal of the complaint, has been dismissed, the petitioner has filed this petition under section 561-A Cr.P.C-D No. 58/2010. The grounds taken in the petition are noted hereunder: 6. The grounds taken in the petition are noted hereunder: 6. It is stated that the trial court has acted illegally and without jurisdiction while taking cognizance and issuing process against the petitioner. The cause of action for filing the complaint had accrued to the respondent on the expiry of 30 days from the date of 1st legal notice, i.e., 08.12.2005, and not the 2nd legal notice. The complaint is filed on 02.03.2005, i.e, after more than 30 days when the cause of action had already accrued. It is submitted that the complaint is clearly time barred under Sub clause (b) of Section 142 of the Act of 1881, as such has caused abuse of process of law,. It is further submitted that, even if it is admitted for the sake of arguments that the 2nd Notice can be given within thirty days from the date of intimation of dishonor of cheque by the respondent's banker, the date of intimation is 07.12.2005 and 2nd Notice is given on 07.02.2006, therefore, it is hit by Sub Clause (b) of Section 138 of the Act of 1881. It is also submitted that it is settled law that the offence of dishonor of cheque is made severe by way of amendment in the Act of 1881 and the adherence to the condition laid down in Sections 138 and 142 of the Act of 1881, the trial court cannot be allowed to brush aside all those provisions of Sections 138 and 142 of the Act of 1881 by taking cognizance of a time barred complaint; that after taking into consideration the allegations made in the complaint, the legal notices dated 08.12.2005 and 07.02.2006 relied upon by the complainant, there lies no complaint against the petitioner, but even though the trial Court took the cognizance into the matter and issued process against the petitioner and no justification was given for taking cognizance on the compliant and issuance of process; that the order of taking of cognizance and issuance of process is a serious stance as the same severely affects life, liberty and rights of the petitioner; that the complainant has abused the process of court by filing the complaint with incomplete facts and deliberately suppressed the material fact which was in his knowledge and was capable of influencing the mind of the court at the time of issuing process; that the order impugned issuing process is non-speaking and suffers from non application of mind. 7. On consideration, this Court in terms of order passed on 10.05.2010 has issued notice to the respondent for appearance. Respondent appeared through Mr. Rajesh Kumar Advocate on 28.05.2010, but on subsequent dates remained absent. 8. Heard learned counsel for petitioner. 9. 7. On consideration, this Court in terms of order passed on 10.05.2010 has issued notice to the respondent for appearance. Respondent appeared through Mr. Rajesh Kumar Advocate on 28.05.2010, but on subsequent dates remained absent. 8. Heard learned counsel for petitioner. 9. Section 138 of the Negotiable Instrument Act, inter alia, provides: where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two year, or with fine which may extend to twice the amount of the cheque, or with both. 10. Proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonor of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or with in the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make 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. The third condition is that the drawer of such a cheque should have failed to make 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 receipt of the said notice. The third condition is that the drawer of such a cheque should have failed to make 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 receipt of the said notice. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under section 138 can be said to have been committed by the person issuing the cheque. 11. Section 142 of the Negotiable Instruments Act governs taking of cognizance of the offence and starts with a non-obstante clause. It provides that 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 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. In terms of sub-section (c) to section 142, no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class is competent to try any offence punishable under Section 138. 12. A conjoint reading of sections 138 and 142 makes it abundantly clear that a complaint under Section 138 can be filed only after the cause of action to do so accrues to the complainant in terms of clause (c) of the proviso to Section 138 which as noticed earlier happens only when the drawer of the cheque in question fails to make the payment of the cheque amount to the payee or the holder of the cheque within fifteen days of the receipt of the notice required to be sent in terms of clause (b) to the proviso to section 138. Respondent No. 1 has filed complaint on 02.03.2006. Fact which are admitted by respondent/complainant are that, cheque for an amount of Rs. 50,000/- was issued by petitioner in the name of respondent. Cheque was presented for realization but vide memo dated 12.11.2005 and 07.12.2005 cheque was dishonored. Notice was send on 08.12.2005 to the petitioner demanding the sum of Rs. 50,000/- within a period of thirty days on account of dishonor of the cheque. 50,000/- was issued by petitioner in the name of respondent. Cheque was presented for realization but vide memo dated 12.11.2005 and 07.12.2005 cheque was dishonored. Notice was send on 08.12.2005 to the petitioner demanding the sum of Rs. 50,000/- within a period of thirty days on account of dishonor of the cheque. Thereafter, the respondent filed a complaint on 02.03.2006 u/s 138 of Negotiable Instrument Act, 1881 against the petitioner. 13. The contention of petitioner that no complaint can be entertained which has not been filed immediately after expiry of 15 days of notice period because cause of action accrues immediately on failure of party which has to make payment, and is not running, so respondent having filed complaint after 42 days from the date of expiry of notice period and trial court has entertained invalid complaint, therefore, cognizance taken in invalid complaint is not permissible, such contention is based on an issue of fact and law, therefore needs to be dealt with by trial court. 14. Viewed thus, this petition is dismissed. Registry to send down copy of this order as also record of trial court for further proceedings. Trial court to issue notice to respondent/complainant for appearance on 15.07.2013.