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Rahimsha Punjasha Diwan v/s State of Gujarat & Another

    Criminal Misc. Application No. 10469 of 2016

    Decided On, 04 April 2017

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE J.B. PARDIWALA

    For the Applicant: Hriday Buch, Advocate. For the Respondents: R1, Pathak, Addl. Public Prosecutor, R2, Sejal H. Vyas, P.M. Vyas, Hiren P. Vyas, Advocates.



Judgment Text

Oral:

1. This matter was mentioned by Mr. Hiren Vyas, the learned counsel, whose appearance is shown on behalf of the complainant. Mr. Vyas pointed out that he is no longer appearing on behalf of the complainant. The complainant has been informed about the same long time back. It appears that the complainant has not taken any steps to engage any other lawyer to oppose this application.

2. By this application under section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused seeks to invoke the inherent powers of this Court praying for quashing of the proceedings of the Criminal Case No.299 of 2015 filed in the court of the learned JMFC, Dasada, District: Surendranagar for the offence punishable under section 138 of the N.I. Act. The following facts are not in dispute:

(i) The cheque is dated 10th May, 2015

(ii) The same came to be dishonoured on 13th May, 2015.

(iii) The statutory notice under section 138 of the N.I. Act came to be issued on 25th May, 2015.

(iv) The notice was served upon the applicant herein on 30th May, 2015.

(v) The period of 15 days expired on 14th June, 2015.

(vi) The period of 30 days started reckoning from 15th June, 2015.

(vii) The 30th day expired on 15th July, 2015.

(v

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ii) The complaint ought to have been filed on or before 15th July, 2015.3. However, it appears that the complaint was filed on 16th July, 2015. The verification of the complainant was also recorded on 15th July, 2015 and process was ordered to be issued.4. The principal argument of the learned counsel appearing for the applicant is that the complaint in question is time barred. The Court ought not to have taken cognizance on a time barred complaint. In support of such submission, the learned counsel has placed reliance on the following decisions;(i) In the case of Umiya Pipe Pvt. Ltd. v. State of Gujarat & Anr., 2009(1) GLR 312;(ii) A decision of the Delhi High Court in the case of D. Babu v. Bhartia Industries Ltd., 2009 (II) DCR 634;(iii) A decision of the Madras High Court in the case of C.K. Mahalingam v. R. Palanisamy, 2009 (3) BC 631;(iv) A decision of the Bombay High Court in the case of Ramdas P. Naik v. P. Kumaran, 2010 (1) BC 361;5. The decision of this Court in the case of Umiya Pipe Pvt. Ltd. (supra) is sufficient to decide this matter.6. In the said judgment, a learned Single Judge of this Court considered an identical issue and observed in paras- 9,10,11,12,13,14,15,16 and 17 as under;"9. The question, which is posed for consideration of this Court, is whether the impugned complaint made by respondent no.2-original complainant against the applicants-original accused is within the stipulated time/period of limitation as contemplated under Section 142 read with Section 138 of the Negotiable Instruments Act, 1881.10. It is the contention on behalf of the applicants-original accused that the complaint for the offence under Section 138 of the Negotiable Instruments Act, 1881 is required to be made by respondent no. 2-original complainant within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138, i.e., immediately, after fifteenth day of receipt of the notice by applicants-original accused under Section 138 of the Negotiable Instruments Act, 1881 and, thereafter within one month. Thus, it is the case on behalf of the applicants-original accused that in the present case, notice issued, by respondent no. 2-original complainant under Section 138 of the Negotiable Instruments Act, 1881, was received by the applicants original accused on 22/12/2006 and giving fifteen days time as contemplated under Sub-Clause (c) of the proviso to Section 138, the complaint was required to be made within a period of thirty days from 06/01/2007, i.e., on or before 06/02/2007 and in the present case, complaint has been made on 09/02/2007.11. On the other hand, it is the contention on behalf of respondent no. 2-original complainant that the limitation to make the complaint would start from the date of receipt of the reply to the notice by the applicants original accused i.e. in the present case on 11/01/2007.12. Relevant provision of the Negotiable Instruments Act, 1881 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.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].(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.13. On fair and conjoint reading of Section 142 read with Section 138 of the Negotiable Instruments Act, 1881, the starting point of limitation as contemplated under Sub Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 would be immediately after completion of fifteen days of receipt of the notice served under Section 138 of the Negotiable Instruments Act, 1881. Considering Section 138 of the Negotiable Instruments Act, 1881 a person is deemed to have committed an offence under Section 138 of the Negotiable Instruments Act, 1881 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, provided that;(i) 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;(ii) 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(iii) 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.14. Thus, if within fifteen days of receipt of notice demanding for payment of the amount of money as contemplated under Sub-Clause (b) of the proviso of Section 138, the drawer of the such cheque fails to make the payment of the said amount of money to the payee, within a period of thirty days thereafter, the complaint is required to be made. Therefore, the cause of action under Sub-Clause (c) of the proviso to Section 138 would arise within fifteen days of the receipt of the notice and for Sub-Clause (b) of the proviso to Section 138 if payment is not made within such fifteen days. In the present case, therefore, the cause of action to make the complaint within one month would arise on completion of 15 days after receipt of the notice by the accused i.e. 22/12/2006. Therefore, after completion of 15 days from 22/12/2006 within a period of one month thereafter the complainant was required to make the complaint i.e. on or before 07/02/2007. However, in the present case, the complaint has been made on 09/02/2007 and, therefore, the same is barred by the period of limitation as provided under Section 142 read with Section 138(c) of the Negotiable Instruments Act.15. The contention and the submission on behalf of respondent no. 2-original complainant that the cause of action under Sub-Clause (c) of the proviso to Section 138 would arise after fifteen days of the reply to the notice under Section 138 by the accused i.e. in the present case on 11/1/2007 cannot be accepted. If such a contention is accepted, in that case, it would render the Sub-Clause (c) of the proviso to Section 138 nugatory and adding something which is not provided under Sub-Clause (c) of the proviso to Section 138. If such a contention is accepted, it would further extend the period of limitation. In a given case, the accused and/or the drawer may even reply to the notice under Section 138 on the fourteenth day and/or on fifteenth day in that case, the period of limitation would further be extended for a period of 15 days. On fair reading of Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act within 15 days of the receipt of the notice the drawer has to make the payment, and within those 15 days, if the payment is not made, cause of action to make the complaint would arise and, therefore, fifteen days time is given to the drawer to make the payment, failing which, right in favour of the respondent-complainant to make the complaint would arise.16. It is true that considering the proviso to Sub-Clause (b) of Section 142 cognizance of the complaint may be taken by the Court after the aforesaid prescribed period, if the complainant satisfies the Court that he has sufficient cause for not making a complaint within such period but in that case the complainant has to plead in the complaint to condone the delay making out a sufficient cause for not making the complaint within such a period and if the complainant satisfies the Court that he has sufficient cause for not making the complaint within such a period, the Court may take cognizance of such a complaint. In absence of any pleading and/or request to condone the delay without pointing out sufficient cause, benefit of such a proviso can be given. In the present case, in the complaint, there is no prayer to condone the delay and/or making out a sufficient cause for not making the complaint within the prescribed period of limitation and, therefore, such a proviso as provided under Sub-Clause would not be helpful to respondent no. 2-original complainant.17. Considering the above, the impugned complaint filed by respondent no. 2 herein against the applicant original accused for the offence under Section 138 of the Negotiable Instruments Act is beyond the period of limitation as prescribed under Section 142 read with Section 138 (c) of the Negotiable Instruments Act, 1881 and, therefore, the learned trial Court could not have taken cognizance of the said complaint. Under the circumstances, the impugned complaint and the order of the learned trial Court issuing summons in the said complaint deserves to be quashed and set aside."7. Indisputably, no application for condonation of delay was filed along with the complaint.8. In such circumstances, the proceedings of the criminal case deserve to be quashed.9. For the foregoing reasons, this application succeeds and is hereby allowed. The proceedings of the Criminal Case No. 299 of 2015 filed in the court of the learned JMFC, Dasada, District: Surendranagar are hereby quashed.Direct service is permitted.Application allowed.
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