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2013 DIGILAW 411 (AP)

Gaddam Chandrashekar v. Bhavanam Lokeshwar Reddy

2013-06-07

C.PRAVEEN KUMAR

body2013
ORDER This Criminal Petition is filed by the petitioner/Accused under Section 482 Cr.P.C. seeking quashing of proceedings in C.C.No.107 of 2010 on the file of the Judicial First Class Magistrate, Special Mobile Court, Guntur. A private complaint was filed against the accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act). 2. The allegations in the complaint are that the accused borrowed a sum of Rs. 2,00,000/- from the complainant on 10.09.2008 for his family expenses and executed four promissory notes agreeing to repay the same together with interest at 24% p.a. either to the complainant or to his order on demand. Subsequently, the accused was postponing the payment of money on some pretext or the other. Ultimately on 31.03.2009 the accused issued a cheque bearing No. 744718 for Rs. 2,00,000/- in discharge of the principal amount covered under four promissory notes. When the said cheque was presented for collection through his Banker on 10.08.2009, it was returned as "Funds insufficient". After the receipt of the cheque and return memo dated 31.08.2009, the complainant got issued a statutory notice as contemplated under the Act. Though the said notice was received by the accused on 11.09.2009, he did not choose to give any reply. Ultimately, the complaint came to be filed on 25.09.2009 vide CFR No. 6162/2009 on the basis of three original pronotes on 03.10.2009. 3. The learned counsel for the petitioner submits that since the said complaint was filed even before the expiry of 15 days as contemplated under clause (b) and (c) of Section 138 of the Act, the Magistrate ought not to have taken cognizance of the said matter. Hence, it is submitted that the continuation of proceedings is an abuse of process of law. 4. Inspite of the case being adjourned from time to time, there is no representation on behalf of the respondent. Hence, the matter is being disposed of after hearing the learned counsel for the petitioner and the Public Prosecutor. 5. There is no dispute that the cheque dated 31.03.2009 was presented at Andhra Bank, Koritepadu Brarich, Guntur on 10.08.2009 and the same was returned due to "insufficient of funds". After receipt of the cheque and the return memo on 31.08.2009, the respondent herein got issued a statutory notice under Section 138 of the Act, demanding the accused to pay the money. After receipt of the cheque and the return memo on 31.08.2009, the respondent herein got issued a statutory notice under Section 138 of the Act, demanding the accused to pay the money. Though the notice was served on the accused on 11.09.2009, the petitioner neither paid the money nor issued any reply to the said notice. Thereafter, the present complaint came to be fik, cL on 25.09.2009, which was returned due to some objections and the same was represented on 03.10.2009 after complying with all the office objections. 6. The question that arises for consideration in the present petition is : "Whether the complaint that has been filed before the expiry of 15 days as contemplated under Section 138(b) and (c) of the Act, will render dismissal of the complaint on the ground that it is premature ?" 7. Section 133 of the Act, which reads as under: 138. Dishonour of cheque for insufficiency, etc., of funds in the account :- 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: Provided that nothing contained in this section shall apply unless:- (a) 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 its validity, whichever is earlier. (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; and (c) 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 receipt of the said notice. Explanation :- For the purposes of this Section, "debt or other liability" means a legally enforceable debt or other liability. 8. In Narsingh Das Tapadiu v. Goverdhan Das Partani and another (1) 2000 (6) ALT 1 (SC) = 2000 (2) ALD (Crl.) 727 (SC), while dealing with a situation, where a complaint was filed on 08.11.1994 i.e., before the expiry of 15 days period as provided under Section 138 (c) of the Act, and cognizance was taken on 17.11.1994 i.e., after expiry of 15 days statutory period but within the period of limitation, The Apex Court held that there is no illegality in Magistrate taking cognizance of the matter on 17.11.1994. 9. In L.K. Prabhavathi v. K.V. Sree Rama Murthy and another (2) 2006 (3) ALT (Crl.) 432 (A.P.) = 2006 (2) ALD (Crl.) 966 (AP), this court was dealing with a situation where the complaint was presented on 14th day after the receipt of notice of the 1st respondent. The court took cognizance of the complaint and the case underwent trial and it is only at the time of arguments, preliminary objection as to the maintainability of the complaint for non-compliance of Clause (c) of the proviso to Section 138 of the Act was taken which was upheld by the Court below. No doubt, as on the date of filing of the complaint, there was no cause of action which enabled the court to take cognizance of the complaint. No doubt, as on the date of filing of the complaint, there was no cause of action which enabled the court to take cognizance of the complaint. But, as per the decision of the Supreme Court in Nasringh Das Tapadia v. Goverdhan Das Partani and another (3) 2000 (6) ALT 1 (SC) = (2000) 7 SCC 483, even if the complaint is found to be premature it can await till maturity or it has to be returned to the complainant for filing it later. The presentation of the complaint on an earlier date will not render the complaint to be dismissed or confer any right upon to the accused to absolve himself from the criminal liability. 10. In N. Venkata Sivaram Prasad v. M/s. Rajeswari Constructions (4) 1996 (2) ALT (Crl.) 36 (D.B.) (A.P.) = 1996 (Crl.L.J.) 3409 a Division Bench of this High Court while dealing with an identical situation observed that when the complaint is filed even before expiry of period of 15 days from date of service of notice as prescribed under proviso(c) to Section 138, such complaint is premature and no cognizance can be taken by Magistrate even after expiry of said period of 15 days and said complaint being no complaint in eye of law. Section 142 of the Act contemplates no court shall take cognizance of any offence punishable under Section 138, except upon a complaint in writing made by the payee. Therefore, for taking cognizance of offence, there should have been a complaint containing the facts which constitute an offence. Unless the offence is ex facie disclosed in the complaint, the Magistrate cannot have any competence to take cognizance of the offence and proceed further. In the case of N. Venkata Sivaram Prasad v. M/s. Rajeswar Constructions (supra) this Court found that the condition precedent for taking cognizance is the prima facie disclosure of offence based on the allegations in the complaint itself and as the offence was not made out on the date of taking the complaint on file and examining the complainant, the Magistrate instead of taking cognizance of the offence and proceeding further, should have straightway returned the complaint. At the most, he should have, after examining the complainant, dismissed the complaint under Section 203 Cr.P.C. 11. At the most, he should have, after examining the complainant, dismissed the complaint under Section 203 Cr.P.C. 11. From the above provisions of the Act, it is clear that the offence under Section 138 of the Act, the Court can take cognizance if the same has been filed within one month of the date on which the cause of action arose under clause (c) of proviso to section 138. Clause (b) and (c) of Section 138 says that the provisions of Section 138 are applicable only 1) when 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 fifteen days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid; and 2) when the drawer of the cheque fails to make the payments 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 15 days of the receipt of the statutory notice. Therefore, cause of action to file a complaint will arise only when drawer of the cheque fails to pay the amount within 15 days from the date of statutory notice required to be issued under clause (b) of the proviso to Section 138 of N.I. Act. 12. In the instant case the notice was issued on 31.08.2009 and the same was acknowledged by the accused on 11.09.2009. The complaint came to be filed on 25.09.2009 i.e., on the 14th day after the receipt of the notice. But things would happened different if the learned Magistrate took cognizance of the complaint which has been filed on the 14th day. In the instant case, the said complaint has been returned due to some objections taken by the office. After complying with the office objections, the complaint came to be represented on 03.10.2009 only then the court took cognizance of the complaint. Therefore, the learned Magistrate took cognizance of the complaint beyond the period of 15 days, but within the period of limitation i.e., one month. 13. After complying with the office objections, the complaint came to be represented on 03.10.2009 only then the court took cognizance of the complaint. Therefore, the learned Magistrate took cognizance of the complaint beyond the period of 15 days, but within the period of limitation i.e., one month. 13. As held by the Apex Court, taking cognizance of an offence by the court has to be distinguished from the filing of the complaint by the complainant in Narasing Das Tapadia v. Goverdhan Das Partani and another. The Supreme Court observed that taking cognizance would mean the action taken by the court for initiating judicial proceedings against the offender in respect of the offence regarding which complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown, that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. Mere presentation of the complaint in the court cannot be held to mean, that it's cognizance had been taken by the Magistrate. In fact the Supreme Court in the above case observed that if the complaint was pre-matured it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complainant liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. 14. The learned counsel for the petitioner relied upon P. Prakash Chand v. V.V. Rama Rao a Co. and State (5) 1994 (1) ALT (Crl.) 510 (A.P.). It was a case, where notice was issued on 01.04.1991 and served on the petitioner on 06.04.1991. Reply was given by the petitioner on 10.04.1991. While, the prosecution was launched by the first respondent therein on 18.04.1991, which is prior to the expiry of 15 days and cognizance was taken much prior to the expiry of the said period. In that view of the matter, this court was pleased to quash the said proceedings. 15. Similarly in Shyamial Jain v. Kevalchand Jain and another (6) 2010 (3) ALT (Crl.) 65 (SC) = 2010 (2) ALD (Crl.) 686 (AP), the notice was issued on 17.04.2005 was posted to the accused on 19.04.2005 which was received by him on 22.04.2005. In that view of the matter, this court was pleased to quash the said proceedings. 15. Similarly in Shyamial Jain v. Kevalchand Jain and another (6) 2010 (3) ALT (Crl.) 65 (SC) = 2010 (2) ALD (Crl.) 686 (AP), the notice was issued on 17.04.2005 was posted to the accused on 19.04.2005 which was received by him on 22.04.2005. Thereafter a complaint came to be filed on 06.05.2005 i.e., on 14th day after service of the notice on the accused and on the same day the lower court took cognizance of the matter. 16. The above two cases relied upon by the learned counsel for the petitioner are of no help, to him since cognizance of the matter was taken even before the expiry of 15 days. In the instant case as already observed, the complaint was presented on 14th day from the date of receipt of notice. It is no doubt true that as on the date of filing of the complaint there was no cause of action. But as per the decision of the Apex Court even if the complaint is found to be premature, it can await maturity or it has to be returned to the complainant for filing it later and its presentation on an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon to the accused to absolve himself from the criminal liability. 17. Further, in the present case though the said complaint was filed on 14th day, the cognizance of the same was taken on 03.10.2009 i.e., beyond the period of 15 days, but within the period of limitation i.e., one month. 18. In that view of the matter, it cannot be said that the Magistrate took cognizance of the matter even before the cause of action. In that view of tile matter it can safely be held that the Magistrate took cognizance of the matter within the time prescribed under the Act and it cannot be said that continuation of the proceedings would amount to an abuse of process of law. 19. Accordingly, the Criminal Petition is dismissed as it is devoid of any merits.