1 By way this Revision Application, original complainant has challenged the judgment and order dated 21.2.2011, passed by the learned Chief Judicial Magistrate, First Class, Amreli, in Criminal Case No.56 of 2009, by which the respondent-accused was acquitted from the offence under Sections 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act) for short) as well as the judgment and order dated 20.10.201, passed by the Sessions Judge, Amreli, in Criminal Appeal No.8 of 2011, by which the acquittal recorded by the learned Chief Judicial Magistrate, First Class, Amreli, has been confirmed.
2 Brief facts arising from the case are as under:
That the applicant filed a complaint against the present respondent on 22.12.2008 in the court of learned Chief Judicial Magistrate, First Class, Amreli, which was initially numbered as Criminal Case No.148 of 2008 and subsequently numbered as Criminal Case No.56 of 2009, by which it was alleged that the accused had purchased a residential apartment which belongs to the complainant. It was alleged that out of total consideration, he owed Rs.2.75 lacs from the respondent accused. The accused gave a cheque bearing No.139227 dated 17.6.2008, drawn on Rajkot Nagarik Sahakari Bank Limited. The said cheque was deposited by the complainant in his account with the Bank of India, on 17.9.2008. The cheque was returned by the bank with a note that there was insufficient balance in the said account. He himself has stated that he served a notice on 12.11.2008 through his lawyer under the provisions of Section 138 of the Act and called upon the accused to pay the disputed amount within 15 days. Since the amount was not paid, he had no alternative but to file a complaint under the provisions of the Act in the Court of learned JMFC, Amreli.
4 In response to the summons issued by the Magistrate, the accused appeared and pleaded not guilty and, therefore, the case proceeded further. The complainant examined himself at Exhibit-13 and produced several documentary evidence in support of his case. The accused also examined one Anilbhai Ramnikbhai, at Exhibit-60 and produced several documentary evidence to prove that the complainant did not owe any legal debt or liability and, therefore, the complaint be dismissed and the accused be acquitted from the charges under Section 138 of the Act.
5 The Trial Court after perusing the documentary evidence and the relevant dates with regard to compliance of mandatory provisions which are most important aspect in an offence Section 138 of the Act, came to the conclusion that the same are not followed and therefore acquitted the accused from the said offence by its judgment and order dated 21.2.2011. The said judgment and order, as stated here-in-above, was carried further by the original complainant by way of filing an appeal in the District Court at Amreli, which was dismissed by the Sessions Judge. Hence, this Revision Application.
6 Mr.
Samir Afzal Khan, learned Advocate, appearing for the applicant, has submitted that the courts below have erred in not treating the Notice dated 22.9.2008 - Exhibit-36 as a notice issued under Section-138 of the Act. He has submitted that by the said notice, he had called upon the accused person to pay the amount of Rs.2,75,000/-, for which the cheque was given. In support of his submission, he has placed reliance on a decision of the Andhra High Court, in the case of E.V.
Ramanarasaiah and Anr. vs. G. Gnaneswar and Anr., reported at 2002 (2) ALD Cri. 188: 2002(2) ALT Cri. 353 and contended that all details are not necessary while issuing a notice under Section 138 of the Act. He has further submitted that if the said notice at Exhibit-36 is treated as a notice under Section 138 of the Act, the Trial Court ought to have treated as his notice issued within the period of limitation as provided under Section 138 of the Act. He has further submitted that Notice dated 12.11.2008 - Exhibit-37, by which the details of the return Cheque of Rs. 2.75,000/- was given to the accused and since the complaint was filed within the prescribed period of limitation, the case requires consideration.
7 On the other hand, Mr. D.M.Devnani, learned Advocate, appearing for the original accused- respondent No.2, has submitted that the Notice dated 22.9.2008-Exhibit-36, does not disclose about the return of the cheque by the Bank. The complainant has also not disclosed that on what date the cheque was deposited for realization. Therefore, this notice cannot be treated as a notice under Section 138 of the Act. He further submitted that even if the Court considers that this notice is issued under Section-138 of the Act, then also, the complaint was lodged on 22.12.2008 and, therefore, it is barred by limitation as provided under Section 138 read with Section 142 of the Act. He further submitted that the complainant cannot take advantage of two notices which were produced on the record. He further submitted that on one hand, the complainant says that he had served the notice on the accused as provided under Section 138 of the Act within 30 days from the receipt of information and does not file the complaint within the period prescribed under Section-142 of the Act and on the other hand the complainant cannot rely on the Notice dated 12.11.2008 - Exhibit-37 by which he has demanded the disputed amount as provided under Section 138 of the Act. The said notice is sent after the period prescribed under Section 138 (b) of the Act.
8 I have heard learned Advocates appearing for the parties. I have examined the reasons assigned by the Trial Courts and relevant documents produced by the applicant along with this Revision Application. The applicant has produced the Notices at Exhibits 36 and 37 and the information of the Bank of India sent to the complainant about returning the cheque with an endorsement of having been found insufficient funds in the account. I am of the opinion that before dealing with the case on hand, certain dates are necessary to be considered which are as under:
(i) The Cheque dated 17.6.2008 was deposited in the account of the complainant on 17.9.2008. The Bank returns the cheque on 17.9.2008 - Exhibit-35 with an endorsement of having insufficient fund in the account of the accused.
(ii) Notice dated 22.9.2008-Exhibit-36 issued by the complainant through his Advocate, by which the accused was called upon to pay the amount of Rs. 2,75,000/-.
(iii) Another Notice dated 12.11.2008 - Exhibit-37 was sent by the complainant through is Advocate in which he has stated that the Bank has returned the cheque with an endorsement dated 17.9.2008 that the balance is insufficient.
(iv) The complaint was filed on 22.12.2008 under Section 138 of the Act in the Court of learned JMFC, Amreli.
9 Now to appreciate the case, reproduction of Section-138 of the Act is necessary. The same reads as under 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.
[Explanation
- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.] 10 In the present case, the Cheque dated 17.6.2008 was deposited within six months from the date on which it is drawn. Therefore, the proviso (a) to Section-138 of the Act is complied by the complainant. Proviso (b) to Section 138 of the Act contemplates that 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. Now, in the present case, the cheque was returned by the Bank on 17.9.2008 on account of insufficiency of funds in the account of the accused-respondent. The first notice dated 22.9.2008 issued by the complainant upon the accused if accepted as a legal notice under Section-138 of the Act, then, the provisions of Section-142 of the Act would come into play. Section-142 of the Act contemplates the powers of a court for taking cognizance of a complaint subject to certain conditions. Section 142 of the Act 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.]
(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.] 11 Section-142(b) of the Act provides limitation for filing a complaint and it also provides that if the complaint is filed within a period of one month from the date on which the cause of action arises, then only the Magistrate can take cognizance of the same.
12 In the present case, if the notice dated 17.9.2008 is accepted as a legal notice, then, the complaint which is lodged on 22.12.2008 is time barred. Time of fifteen days would expire on 6.10.2008 for the accused to pay the dues, and if he fails, then one month time is granted by the Legislature under Section 142(b) of the Act to lodge a complaint and, therefore, in the present case, the same would expire on 6.11.2008. This is an admitted position that in the present case, the complaint was lodged on 22.12.2008, that means, the Magistrate had no power to take cognizance of the same and, therefore, both the courts below have rightly dismissed the complaint lodged by the applicant.
Apart from the aspect of limitation, if the complaint dated 22.9.2008 is perused, it appears that the applicant/ complainant has not specifically stated that on what date he had deposited the cheque in question in his account and on what date the bank had returned the same with an endorsement of having insufficient fund. It also appears from the complaint that the complainant has not been called upon the respondent to deposit the amount within fifteen days. It is pertinent to note that the present applicant who lodged the complaint has not relied upon this Notice dated 17.9.2008 in his complaint but has relied only one notice dated 12.11.2008. Hence, I am of the opinion that the said notice dated 17.9.2008 cannot be treated as a legal notice issued under Section-138 of the Act.
If I consider the notice dated 12.11.2008-Exhibit-37 as notice issued under Section-138 of the Act, the said notice itself is time barred since the notice has been issued after the prescribed period of limitation as provided under proviso (b) to Section-138 of the Act. Therefore, on the aforesaid counts, the complainant has failed in establishing that the notice was issued within the prescribed period of limitation as well as the complaint was lodged within the prescribed period of limitation provided under the Act.
12 As far as the decision cited by the learned Advocate for the applicant, I am of the opinion that, the said case was filed under Section 482 of the Code of Criminal Procedure, 1973 and the facts of the said case are entirely different from the present case. In the present case, both the courts below, after full fledged trial, have observed that, the Notice dated 17.9.2008 is not a notice under Section-138 of the Act and the complaint was filed after expiry of period of limitation. Therefore, the said decision would not be helpful to the present applicant.
13 In view of the aforesaid discussion, I am of the opinion that both the courts below have not committed any error, whatsoever, which would call for the interference by this Court. Hence, this Revision Application fails and stands dismissed accordingly. Rule is discharged.
(A.J.DESAI, J.) pnnair Top