1. Heard Dr. S.B. Singh, learned counsel for the applicant and learned A.G.A. for the State-opposite party no.1. No one appears on behalf of opposite party no.2, even in the revise call.
2. This application under Section 482 Cr.P.C. has been preferred by the applicant for quashing the summoning order dated 20.06.2006, under Section 138 of the Negotiable Instruments Act as well as proceeding in Case No.1567 of 2006 (Firm Khalique and Brothers Vs. Firm Aqsa Testiles), pending in the Court of Chief Judicial Magistrate, Mau, District Mau.
3. The opposite party no.2 has made averment that the applicant issued four cheques in his favour (Cheque No.16049 dated 10.06.2005 for Rs.30,000/-, Cheque No.16050 dated 20.06.2005 for Rs.30,000/-, Cheque No.16051 dated 25.08.2005 for Rs.30,000/- and Cheque No.16052 dated 01.07.2005 for Rs.25,000/-). All the cheques were submitted in I.D.B.I. Bank at Varanasi and the all the cheques were dishonoured due to the fact that the account of payee was closed. The legal notice was sent by opposite party no.2 to the applicant on 13.12.2005 requiring the opposite party no.2 to make payment of Rs.1,15,000/-, failing which the case will be executed. The opposite party no.2 filed the complaint before the court below on 21.03.2006 which is annexed as Annexure No.3 to the application.
4. The statement under Sections 200 and 202 Cr.P.C. were recorded by the court below and thereafter, summons were issued on 20.06.2006 for appearing before the Court. The applicant has challenged summoning order as well as entire case instituted against him.
5. Learned counsel for the applicant submits that opposite party no.2 has mentioned in the complainant itself that cause of action arose on 28.11.2005 and thereafter opposite party no.2 had given legal notice on 13.12.2005. After giving one month's notice and thereafter 15 days' period as mentioned in Sections 138 and 142 of the Negotiable Instrument Act (here-in-after referred to as "the N. I. Act"), the cause of action arose on 26.01.2006. The complaint case was filed on 21.03.2006.
6. Learned counsel for the applicant has advanced argument that opposite party no.2 filed the case beyond reasonable limitation. The opposite party no.2 has not given any plausible reason for delay in the entire complaint; thus, the case under N.I. Act is liable to be quashed.
7. Sections 138 and 142 of the N.I. Act are relevant for disposal of the present case. Sections 138 and 142 of the N.I. Act is reproduced as below:
"Section 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.
Section 142. Cognizance of offences. -- [(1)] 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.] (2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,--
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated."
8. I have gone through the records.
9. The cause of action arose on 28.11.2005, therefore, the opposite party no.2 had sent legal notice on 13.12.2005 to the applicant. The time of one month notice expired on 11.01.2006 as per Sections 142 (1) (b) of the N.I. Act. If fifteen days' further added, the same will expire on 26.01.2006. The opposite party no.2 filed the case under the N.I. Act on 21.03.2006, which is much beyond the time schedule prescribed under Sections 138 (c) and 142 (1) (b) of the N.I. Act.
10. Learned counsel for the applicant has cited some cases i.e. PREM CHAND VIJAY KUMAR Vs. YASHPAL SINGH AND ANOTHER, SIL IMPORT, USA Vs. EXIM AIDES SILK EXPORTERS, BANGALORE; AND SADANANDAN BHADRAN Vs. MADHAVAN SUNIL KUMAR.
In the case of Prem Chand Vijay Kumar, Hon'ble Supreme Court has held that the Magistrate cannot take cognizance if the complaint is not filed within one month from the date, of which the cause of action arose. The Court has enunciated that cause of action will arise just soon after completion of the offence and period of limitation. Para 15 of the said judgment is reproduced as below:-
"15 . In SIL Import, USA v. Exim Aides Silk Exporters it was held that the language used in Section 142 admits of no doubt that the Magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date on which the cause of action arose. Completion of the offence is the immediate forerunner of rising of the cause of action. In other words, cause of action would arise soon after completion of the offence and period of limitation for filing of the application starts running simultaneously."
11. Similarly, the case of Sil Import, USA Vs. Exim Aides Silk Exporters, Bangalore is also important to mention. The Court has pronounced the judgment, wherein, it is provided that after legal notice of one month, fifteen days' period for committing the offence will start and thereafter after expiry of fifteen days, the offence is completed and within one month, if, no complaint is filed the Magistrate is barred to take cognizance of the complaint, which is filed beyond limitation period. Para 24 of the said judgment is reproduced as below:-
"24. The upshot of the discussion is, on the date when the notice sent by Fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution thereafter, due to the clear interdict contained in Section 142 of the Act."
12. In the case of Sadanandan Bhadran Vs. Madhavan Sunil Kumar reported in (1998) 6 SCC 514, Hon'ble Supreme Court has dealt with the provision of Section 20 of the Civil Procedure Code and cause of action has been dealt which is relevant in the present case. Para 6, 7 & 8 of the said judgment is reproduced as below:-
"6. In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) 'cause of action' means every fact which it si necessary to establish to support a right or obtain a judgment. Viewed in that context, the following facts are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Act:
(a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured;
(b) that the cheque was presented within the prescribed period;
(c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and
(d) that the drawer failed to make the payment within 15 days of the receipt of the notice.
If we were to proceed on the basis of the generic meaning of the term 'cause of action' certainly each of the above facts would constitute a part of the cause of action but then it is significant to note that clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. The reason behind giving such a restrictive meaning is not far to seek. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under clause @ 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. The combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142 arises - and can arise - only once.
7. Besides the language of Sections 138 and 142 which clearly postulates only one cause of action there are other formidable impediments which negates the concept of successive causes of action. One of them is that for dishonour of one cheque there cane be only one offence and such offence is committed by the drawer immediately in his failure to make the payment within fifteen days of the receipt of the notice served in accordance with clause (b) of the proviso to Section 138. That necessarily means that for similar failure after service of fresh notice on subsequent dishonour the drawer cannot be liable for any offence nor can the first offence be treated as non est so as to give the payee a right to file a complaint treating the second offence as the first one. At that stage it will not be a question of waiver of the right of the payee to prosecute the drawer but of absolution of the drawer of an offence, which stands already committed by him and which cannot be committed by him again.
8. The other impediment to the acceptance of the concept of successive causes of action is that it will make the period of limitation under clause of Section 142 otiose, for, a payee who failed to file his complaint within one month and thereby forfeited his right to prosecute the drawer, can circumvent the above limitative clause by filing a complaint on the basis of a fresh presentation of the cheque and its dishonour. Since in the interpretation of statutes the Court always presumes that the legislature inserted every part thereof for a purpose and the legislative intention is that the very part should have effect the above conclusion cannot be drawn for, that will make the provision for limiting the period of making the complaint nugatory."
13. The entire complaint filed by opposite party no.2 does not indicate any reason as to why delay took place in filing the complaint. The averment regarding the delay and time-barred complaint is made in para 11 and 12 of the instant application and the opposite party no.2 has not denied the contents of para 11 and 12 while giving reply in para 10 of the counter affidavit the opposite party no.2 has said that case is argumentative and suitable reply will be given at the time of argument. The opposite party no.2 has rather admitted the contents of para 11 and 12 because vague reply has been given. The complaint filed by the opposite party no.2 does not satisfy the test envisaged in Sections 138 and 142 of the N.I. Act.
14. In view of the aforesaid discussion, I set aside the summoning order dated 20.06.2006 and quash the criminal proceeding in Case No.1567 of 2006 (Firm Khalique and Brothers Vs. Firm Aqsa Testiles), pending in the Court of Chief Judicial Magistrate, Mau, District Mau.
15. The application stands allowed.
Order Date :- 23.12.2021 Atul