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2022 DIGILAW 757 (JK)

Fayaz Ahmad Sheikh v. Fayaz Ahmad Malik

2022-12-30

VINOD CHAFLERJI KOUL

body2022
JUDGMENT : (Vinod Chaflerji Koul, J.) : 1. A complaint filed under section 138 of the Negotiable Instrument Act as well as the cognizance taken on the said complaint is sought to be quashed by the petitioner through the medium of this petition filed under section 482 of the Code of Criminal Procedure. 2. The main ground taken up for quashing of the complaint and the cognizance taken is that the Trial Court has entertained a time barred complaint and has after taking cognizance issued process against petitioner. 3. The complainant/respondent is stated to have been given two cheques by the petitioner-accused for an amount of Rs. 2,00,000/- on 02.01.2021 and 04.01.2021. The said cheques were drawn on HDFC, Bank Barzulla, Srinagar, which were presented by complainant/respondent for encashment and both the cheques were dishonoured and returned back with endorsement "accounts closed". The reason for dishonour of the cheques, therefore, was that the account was closed by the accused-petitioner. Respondent's case is that upon dishonour of the cheques, he approached petitioner/accused with a demand to liquidate the amount, but he did not accept his demand and did not pay the amount of the cheques and thereafter complainant/respondent served demand notice upon accused/petitioner through registered post on 20.04.2021 requesting him to pay the amount to the complainant. 4. The petitioner has placed on record copies of the cheques issued along with the memo of the bank and also the notice. The notice of demand has been sent on 19.04.2021 and by virtue of the said demand notice, the petitioner/accused had been asked to pay the amount and in the event of his failure to pay the amount, proceedings would be initiated against him. 5. Notice is also on record along with the postal receipt. As per the postal receipt, the said notice has been posted on 20.04.2021. The complaint in question has been filed on 30.07.2021. The case of the petitioner is that having regard to the date of dishonour of the cheque, and issuance/service of the notice upon him, complaint filed by respondent/complainant was time barred, therefore, Trial Court ought not to have taken cognizance and issued process against him and, as such, the complaint as well as the order whereby the cognizance has been taken, require to be quashed. 6. 6. On the other hand, counsel for the respondent/complainant submits that the complaint was filed within time, therefore, nothing wrong can be found with the order of the Trial Court whereby the complaint has been entertained and cognizance taken and process issued. 7. Section 138 of the Negotiable Instrument Act deals with dishonour of cheque for insufficiency, etc. of the funds in the account of the drawer of the cheque. Section 138 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 be extended to two years, 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." 8. Having regard to the provisions of Section 138, what is required, in order to constitute an offence under section 138, is that a cheque is presented to the bank within the period of its validity and on its dishonour, a notice for demand is to be made in writing to the drawer of the cheque within 30 days of the receipt of information by him from the Bank regarding return of the cheque as unpaid and drawer of cheque fails to make such payment of the said amount of money within 15 days of the receipt of the notice. On fulfilment of the above said conditions, offence under section 138 can be said to have been committed. 9. In the present case, the two cheques dated 02.01.2021 and 04.01.2021 were presented before the Bank on 09.04.2021 within the period of its validity. The said cheques were dishonoured on account of closure of the account and memo was issued on 04.04.2021. The payee/holder of the cheque, i.e., the complainant-respondent made a demand on 19.04.2021 and despite the demand, the accused failed to make the demand. The ingredients of Section 138 have been fulfilled and, as such, commission of offence under section 138 of the Negotiable Instruments Act has been made out. 10. Cognizance of offence punishable under section 138 is taken under section 142 of the Negotiable Instruments Act which reads as under:- "142. Cognizance of offences. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) 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; (b) 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: Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period." 11. What is required by the complainant as is provided in Section 142 is that he files a complaint within one month of the date on which the cause of action has accrued as per the clause (c) of the proviso to Section 138. What is required by the complainant as is provided in Section 142 is that he files a complaint within one month of the date on which the cause of action has accrued as per the clause (c) of the proviso to Section 138. So, in terms of Section 142, a complaint is to be filed within one month. The complaint has been filed by respondent/ complainant on 30.07.2021 and the complainant had stated in the complaint that demand notice was issued and served by him on petitioner-accused on 20.04.2021. 12. Para 6 of the complaint mentions about date when demand notice had been served on the accused through registered post, which is 20.04.2021. Postal receipt placed on record shows that notice dated 19.04.2021 was sent through registered post on 20.04.2021. It is admitted case of respondent/complainant that demand notice had been issued and served on petitioner-accused on 20.04.2021 and therefore, on his own showing, complaint has not been filed within time by respondent/complainant and is time barred. 13. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed, arises, and the period of one month for filing the complaint under section 142 is to be reckoned accordingly. 14. The complainant in his complaint, having given the specific date of service of demand upon petitioner/accused, has yet filed a time barred complaint. The Trial Court not to have taken cognizance and issued process on such a time barred complaint. 15. Proviso to clause (b) of Section 142 provides that the cognizance of complaint may be taken by the Court after the prescribed period if the complainant satisfies the Court that he has sufficient cause in not making the complaint within such period. 16. This importance aspect of the matter has escaped the notice of the Trial Court and Trial Court has not taken into account whether there was any delay in filing the complaint as provided under section 142 (b) and whether there were sufficient grounds which would warrant entertaining the complaint beyond that period. 17. 16. This importance aspect of the matter has escaped the notice of the Trial Court and Trial Court has not taken into account whether there was any delay in filing the complaint as provided under section 142 (b) and whether there were sufficient grounds which would warrant entertaining the complaint beyond that period. 17. The Trial Court is required to have considered this aspect of the case when on the face of it the complaint has been filed beyond the period of limitation as provided under section 142 of the Negotiable Instruments Act. For the said reason, the order of the Trial Court taken cognizance and issuing process is bad and to this extent order dated 30.07.2021 is set aside. 18. The matter is remanded back to the Trial Court who shall take into consideration the delay, if any, in filing the complaint and shall also take into account whether or not there are sufficient grounds preventing complainant to file the complaint and pass fresh orders. 19. Allowed and disposed of as above. 20. Copy be sent to the Trial Court along with the record.