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2018 DIGILAW 970 (JHR)

Suresh Prasad v. State of Jharkhand

2018-05-01

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
ORDER : 1. Heard learned counsel for the petitioner and learned A.P.P. representing State. 2. Petitioner has sought special leave to appeal against the judgment of acquittal passed in Complaint Case No. 686 of 2013/T.R. No. 339 of 2017 on 25.01.2017 by the learned Court of Judicial Magistrate 1st Class, Ranchi where under the sole accused/opposite party No. 2 has been acquitted of the charge under Section 138 of the Negotiable Instrument Act primarily on the ground that complaint was prematurely filed on 21.03.2013 i.e. on the sixteenth day of the issuance of the registered legal notice on 05.03.2013. 3. There is a delay of 352 days in filing the instant Cr. M.P. which is sought to be condoned through I.A. No. 2660 of 2018. Petitioner has tried to make out an explanation that he is 70 years old retired person suffering from some ailment and after coming to know of the impugned judgment dated 25.01.2017, he obtained the certified copy of the impugned order on 01.03.2017, which consumed sometime. He somehow arranged fund to engage a lawyer and thereafter filed the case with nomenclature S.L.A. which was registered as S.L.A. No. 02 of 2017. The stamp report pointed out about the incorrect nomenclature and thereafter the same was converted into Cr. M.P. vide order dated 15.02.2018. Thereafter another defect was pointed out by the stamp report indicating that the petition is time barred by 352 days. The delay is therefore not intentional but due to inadvertence caused by wrong nomenclature. If the date of filing of the petition on 21.03.2017 is reckoned, there is hardly any delay in filing the petition from the order dated 25.01.2017. 4. Having considered the explanation in the instant I.A. we find that the delay in fact has occasioned on account of wrong nomenclature and petition initially was filed 21.03.2017 within less than 60 days of the passing of the impugned judgment. Rest of the delay is attributable to the correction of the nomenclature after the defect was pointed out by the stamp report. We therefore condone the delay of 352 days in filing the instant petition. I.A No. 2660 of 2018 stands disposed. 5. We have considered the submission of learned counsel for the petitioner and learned A.P.P. on the merits of the prayer seeking special leave to appeal. 6. We therefore condone the delay of 352 days in filing the instant petition. I.A No. 2660 of 2018 stands disposed. 5. We have considered the submission of learned counsel for the petitioner and learned A.P.P. on the merits of the prayer seeking special leave to appeal. 6. The allegations made out through the complaint petition flied on 21.03.2013 show that an amount of Rs. 4,50,000/- was paid on request to the accused/ opposite party No. 2 herein with a promise to return it within 6 months. However, the accused stopped visiting the residence of the complainant and did not turn up for considerable long time, which created doubt about his bona-fide. Finally the complainant exercised some pressure upon the accused to repay the amount, when only a cheque bearing No. 471039 dated 12.02.2013 of Rs. 4,50,000/- drawn on State Bank of India, Doranda Branch, Ranchi was issued by the accused. The cheque was deposited for encashment but was dishonoured with the endorsement on the return memo dated 14.02.2013 fund insufficient. Thereafter the complainant sent a pleader's notice to the accused on 05.03.2013 by registered post but the accused did not make payment to the complainant. Then the complainant filed the instant case on 21.03.2017 i.e. on the sixteenth day of the issuance of the registered legal notice. 7. The complainant examined himself as CW-1 and exhibited Ext-1 cheque number 471039 dated 12.02.2013 for Rs. 4,50,000/- of State Bank of India, Doranda Branch, Ranchi, Ext.2 Cheque return memo dated 14.02.2013 of the State Bank of India, Doranda Branch, Ranchi, Ext.3 legal notice dated 05.03.2013 and Ext.4 postal receipt dated 05.03.2013. Learned trial Court upon conclusion of the trial came to the opinion that the petition was premature as mandatory requirement under Section 138 (c) of the N.I. Act had not been complied with. The complaint had to be filed as per Section 142(b) of the N.I. Act within a month of the date from which the cause of action arose under Section 138 of the N.I. Act. 8. Learned counsel for the petitioner has questioned the findings of the learned trial Court inter-alia asserting that the requirement of Section 138 (c) of the N.I. Act was fulfilled once the drawee i.e. the complainant dispatched the legal notice through registered post on the correct address of the drawer. 8. Learned counsel for the petitioner has questioned the findings of the learned trial Court inter-alia asserting that the requirement of Section 138 (c) of the N.I. Act was fulfilled once the drawee i.e. the complainant dispatched the legal notice through registered post on the correct address of the drawer. No other act was required in terms of Section 138(c) of the Act on the part of the complainant to fulfil the ingredients of giving the notice in writing to the drawer of the cheque. The notice was issued within 30 days of the return memo issued by the Bank regarding the return of the cheque as unpaid. The drawer had failed to make payment of the said amount within 15 days of the receipt of the said notice. Learned counsel for the petitioner further submits that presumption in terms of Section 27 of the General Clauses Act would favour the complainant as the service of the letter containing the document shall be deemed to be effected by properly addressing, pre-paying and posting by registered post. Unless the contrary is proved, it shall be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post. He has further submitted that in terms of provisions of Section 114(f) of the Evidence Act, the Court may presume the existence of probable facts regard being had to the common course of natural events, human conduct in relation to the facts of the particular case. Petitioner has followed common course of business in the particular case. There is no statutory mandate that service of notice under registered cover would be deemed to be effected only on expiry of 30 days from the date of its issuance if neither the registered post cover is returned nor any acknowledgment due with such endorsement is returned. He submits that the relevant provisions of Order V, Rule 19-A of the Code of Civil Procedure has been deleted w.e.f. 01.07.2002. 9. Learned A.P.P. has opposed the prayer and submitted that submission of the petitioner in any case does not merits acceptance. He has presumed deemed service of notice from the date of issuance of registered notice dated 05.03.2013 and filed the complaint on the sixteenth day i.e. 21.03.2013 counting from the date of issuance of the registered notice. 9. Learned A.P.P. has opposed the prayer and submitted that submission of the petitioner in any case does not merits acceptance. He has presumed deemed service of notice from the date of issuance of registered notice dated 05.03.2013 and filed the complaint on the sixteenth day i.e. 21.03.2013 counting from the date of issuance of the registered notice. It is wholly illogical proposition that the accused would be deemed to have received notice on the same date on which the registered notice was dispatched. Therefore, learned trial Court was right in rejecting the complaint as being premature. 10. We have considered the submission of the parties at length and also applied our anxious mind to the contention of the petitioner that even if there is no time period prescribed to presume deemed service of notice under registered cover, if the registered cover or the acknowledgment due is not returned with or without any endorsement, the notice would be deemed to have been received on the date of dispatch itself and that 15 days could be counted from the date of dispatch of registered legal notice for filing of the complaint in terms of Sections 142(b) and 138(c) of the Act. 11. We cannot lose sight of the object and mandate of the provisions incorporated under Section 138 of the N.I. Act, which was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so. Apart from civil liability, a criminal liability was imposed on such unscrupulous drawers of cheques. The prosecution, however, was made subject to certain conditions. With a view to avoid unnecessary prosecution of an honest drawer of a cheque, or to give an opportunity to the drawer to make amends, the proviso to Section 138 provides that after dishonour of the cheque, the payee or the holder of the cheque in due course must give a written notice to the drawer to make good the payment. The drawer is given 15 days time from date of receipt of notice to make the payment, and only if he fails to make the payment he may be prosecuted. The object which the proviso seeks to achieve is quite obvious. The drawer is given 15 days time from date of receipt of notice to make the payment, and only if he fails to make the payment he may be prosecuted. The object which the proviso seeks to achieve is quite obvious. It may be that on account of mistake of the bank, a cheque may be returned despite the fact that there is sufficient balance in the account from which the amount is to be paid. In such a case if the drawer of the cheque is prosecuted without notice, it would result in great in justice and hardship to an honest drawer. One can also conceive of cases where a well intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. 12. It is well-settled that while interpreting a statute, the Court must adopt that construction which suppresses the mischief and advances the remedy. This is a rule relied in Heydon's Case in 1584 (76) ER 637 also known as rule of Purposive Construction and Mischief Rule. However, even by the purposive construction of the instant provision also, we are unable to accept the proposition advanced by learned counsel for the petitioner that the drawer would be deemed to have received the registered legal notice on the date of dispatch i.e. 05.03.2013 and that he would be liable to make payment before expiry of 15 days therefrom. Such a proposition would be not only unreasonable but wholly illogical. 13. Having regard to the discussion made in the factual matrix of the case, we are satisfied that petitioner has not made out any good ground to allow special leave to appeal against the impugned judgment. Accordingly, the instant petition is dismissed. Petition dismissed.