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2019 DIGILAW 296 (AP)

Nemalipitta Vidya Sagar v. State of A. P.

2019-10-29

U.DURGA PRASAD RAO

body2019
ORDER : U. Durga Prasad Rao, J. 1. In this petition the accused assails the cognizance order of the learned II Additional Chief Metropolitan Magistrate, Visakhapatnam in C.C. No. 518 of 2017 for the offences under Sections 138 and 142 of Negotiable Instruments Act, 1881 (for short, "N.I. Act") on the ground that the complaint was filed beyond the statutory period of limitation prescribed under Section 138 of N.I. Act and the trial Court took cognizance without affording prior notice to the petitioner. It should be noted that the petitioner averred several grounds in the petition but ultimately confined his argument to the limitation aspect. 2. As per complaint allegations in C.C. No. 518 of 2017, towards the principal and interest under promissory note dated 08.03.2014 and advance amount of lease agreement dated 12.09.2012, the petitioner/accused issued a cheque bearing No. 000117, dated 25.12.2015 for Rs. 9,00,000/- drawn on Bank of India, Salur Branch, Vizianagaram District and the complainant presented the cheque for collection in State Bank of India, Venkateswarametta Branch, Visakhapatnam on 17.03.2016 which was bounced back on 19.03.2016 with an endorsement "payment stopped by drawer". Hence, the complainant issued a statutory notice under Section 138 of N.I. Act to the accused on 16.04.2016. However, he did not receive postal acknowledgment, hence the Complainant lodged a complaint with postal authorities to intimate the status of the Registered Post. On 19.05.2016, the Postal authorities sent reply stating that the registered cover was delivered to the accused on 22.04.2016 through Pachipenta Post Office. Since the accused did not pay amount in spite of receiving the lawyer notice, the complainant filed the private complaint on the file of II Additional Chief Metropolitan Magistrate, Visakhapatnam on 15.06.2016. 3. Thus, according to the complainant, he came to know that his registered notice was received by the accused on 22.04.2016 only on 19.05.2016 and therefore from that date he waited for 15 days for the accused to pay the cheque amount and when he did not respond, the cause of action to file complaint commenced on 04.06.2016. In terms of Section 142 of N.I. Act, he filed the complaint within one month from 04.06.2016 i.e., on 15.06.2016. Hence, learned counsel for respondent/complainant Sri N. Siva Reddy, would contend that complaint petition was well within time and therefore the trial Court rightly took cognizance and registered the case. 4. In terms of Section 142 of N.I. Act, he filed the complaint within one month from 04.06.2016 i.e., on 15.06.2016. Hence, learned counsel for respondent/complainant Sri N. Siva Reddy, would contend that complaint petition was well within time and therefore the trial Court rightly took cognizance and registered the case. 4. Per contra, learned counsel for petitioner-accused Sri R. Siva Sai Swaroop, would argue that the complaint was filed beyond the period of limitation. According to him, admittedly on 19.05.2016 the postal authorities informed the complainant that the registered notice was received by the accused on 22.04.2016 itself. Therefore, the calculation of 45 days i.e., waiting period of 15 days for expecting payment of the cheque amount plus 30 days time for filing complaint under Section 142 of N.I. Act shall be reckoned from 22.04.2016 but not 19.05.2016. He would vehemently contend that if calculation of 45 days is commenced from 23.04.2016, the complaint can be said to be woefully time barred. Therefore, the complainant was obligated to file a delay condoning petition along with the complaint and the trial Court ought to have served notice on him to file his counter. Instead, the trial Court took the cognizance straight away and hence complaint is not maintainable. 5. He relied upon a judgment of this Court in Crl.P. No. 9990 of 2017 dated 10.12.2018 to contend that this Court on finding that the cognizance order was beyond the period of limitation, set aside the said cognizance order and remitted the matter to the trial Court to consider the limitation aspect afresh. 6. He also relied upon a decision reported in ECON Antri Limited v. Rom Industries Limited and others, 2014 (1) ALT (Crl.) 56 (SC) : 2013 (5) ABR 1277. 7. The point for consideration is whether the complaint was filed within the period of limitation? 8. On a close scrutiny of facts and law, I am of the considered view that the complaint was filed within the period of limitation. 9. So far as limitation is concerned, Sec. 142(1)(b) of N.I. Act tells that the complaint has to be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Sec. 138 of N.I. Act. Therefore, one must necessarily refer to clause (c) of the proviso of Sec. 138 of N.I. Act. Therefore, one must necessarily refer to clause (c) of the proviso of Sec. 138 of N.I. Act. The said proviso reads thus; 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. 10. As per the above proviso, the cause of action to file the complaint arises after 15 days of the receipt of the notice by the accused from the complainant. For computation of period of 15 days, the date of receipt of notice is to be excluded (vide 1999 (1) ALT (Crl.) 240 (SC) : 1999 (3) SCC 1 (Saketh India Limited and others v. India Securities Limited). Thus, under law, the complainant has to wait for 15 days after accused received the notice. This waiting period is obviously to give the accused an opportunity to pay the cheque amount and thereby to avoid prosecution. If he fails to pay within 15 days, then within 30 days thereafter the complainant has to file the complaint. Therefore, the limitation of 30 days commences immediately after 15 days of receipt of notice by the accused. Here the question is how to calculate the period of 45 days (15+30 days). The proviso to Sec. 138(c) of N.I. Act says that payment is to be made within 15 days of receipt of the said notice. So, in order to reckon the aforesaid 45 days, the complainant shall have the knowledge of date of receipt of his notice by the accused. Then only he will be in a position to wait for 15 days from the date of receipt of notice and then file complaint within 30 days thereafter. If the date of receipt of notice alone is taken into consideration without regard to the knowledge of the complainant about such date of receipt of notice, computation of period of limitation will not be possible. So, for the purposive construction, the phrase "within 15 days of the receipt of the said notice" employed in Sec. 138(c) of N.I. Act, should be understood as within 15 days of the knowledge of the complainant of the receipt of the notice by the accused. 11. So, for the purposive construction, the phrase "within 15 days of the receipt of the said notice" employed in Sec. 138(c) of N.I. Act, should be understood as within 15 days of the knowledge of the complainant of the receipt of the notice by the accused. 11. My views get fortified by the decision reported in 2011 (3) KLJ 170 (Gopalakrishnan v. Noorjahan and another). The facts in that case are similar to our case. In that case, lawyer's notice under Section 138 of N.I. Act was issued on 02.09.2000. However, the acknowledgment was not received by the complainant, hence his lawyer made a complaint before the Post Master regarding non-receipt of acknowledgment. Thereafter, on 17.10.2000, the Post Master sent reply stating that the registered article was delivered to the addressee (accused) on 05.09.2000. The complainant received the said reply on 27.10.2000. Since the cheque amount was not paid by the accused, the complaint was filed on 27.11.2000 against the accused. It was contended on behalf of accused that the complaint was time barred as it was not filed within 45 days from 05.09.2000. The trial Court held the complaint was time barred. A learned Judge of the High Court of Kerala disagreed with the aforesaid finding. The learned Judge observed that the complainant being the sender of the notice cannot clearly know the date of actual service of the notice and can only wait for the acknowledgment card. The receipt of the notice under clause (b) of Sec. 138 of the N.I. Act must invariably be by the drawer of the cheque to whom it is given. Knowledge of the sender about the date of receipt of notice by the drawer is, therefore, very much material as regards accrual of the cause of action for making the complaint. Learned Judge further observed thus; 19. On such construction, cause of action for such complaint, so far as the complainant in this case is concerned, would accrue on the failure of the drawer to make payment within fifteen days from the date of knowledge of the complainant about the receipt of the notice by the drawer/accused. Such construction would not in any way be prejudicial to the accused. It would rather be beneficial to her as she would get longer time to make payment of the amount and thus avoid criminal liability for non-payment. xxxx 23. Such construction would not in any way be prejudicial to the accused. It would rather be beneficial to her as she would get longer time to make payment of the amount and thus avoid criminal liability for non-payment. xxxx 23. To summarise, I hold that the expression "the date of receipt of the said notice" in proviso (c) of Section 138 of the Negotiable Instruments Act must be realistically understood as 'the date of knowledge of receipt of the said notice' while computing the period of "one month of the date on which cause of action arises" in Section 142(b) of the Negotiable Instruments Act. That alone would be a just, purposive and realistic interpretation of the law. Any contra interpretation would be unjust and would result in frustration of the purpose of law. 12. If such interpretation is given to Sec. 138(c) of N.I. Act, in the instant case, the complainant came to know that notice was received by the accused on 22.04.2016 only on 19.05.2016. Therefore, he filed complaint within 45 days from 19.05.2016. Hence, the complaint can be said to be within the period of limitation. 13. It may be noted that in SIL Import, USA v. Exim Aides Silk Exporters, Bangalore ( AIR 1999 SC 1609 ). Hon'ble apex Court expressed a different view against the view expressed by the High Court of Karnataka that the sender of the notice must know the date when it was received by the sendee. However, in ECON Antri Limited v. Rom Industries Limited and others (supra) a Larger Bench of apex Court held that SIL Import, USA does not lay down the correct law. 14. In view of the above legal position, I hold that the complaint in the instant case is within the period of limitation. Accordingly, the Criminal Petition is dismissed as devoid of merits. As a sequel, Interlocutory Applications petitions, if any pending, shall stand closed.