1. Heard Sri Salman Ahmad, learned counsel for the applicant, Sri Diwakar Mishra, learned counsel for the opposite party no. 2 and Sri A.D. Mishra, learned A.G.A. appearing for the State and perused the record.
2. This application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned summoning order dated 04.02.2012 passed by Chief Judicial Magistrate, Jalaun at Orai in Complaint Case No.2646 of 2013 (Anil Babu Niranjan vs. Mohammad Yaquoob Mansoori) under section 138 Negotiable Instrument Act, P.S. Kotwali Orai, District Jalaun at Orai and the entire proceedings of complaint case and also a prayer is made to stay the proceedings in this case till the disposal of this application.
3. In the affidavit filed in support of the stay application it is stated that as per the version contained in the complaint, the opposite party no. 2 runs an Electronic shop in Gandhi Market, Orai and the applicant is a proprietor of M/s. N.I. Purse Belt Store on main road, Orai. He does business by the said name. As per prosecution case, both the businessmen i.e. the applicant as well as the opposite party no. 2 were having good relation and since the applicant needed money for enhancement of his business, the applicant borrowed Rs.3.00 lacs from opposite party no. 2. On 7.10.2013 a cheque bearing no.038386 of Union Bank Branch, Orai was issued by the applicant for returning the said amount, which was presented by opposite party no. 2 before the Bank on 9.10.2013 but the same was returned with an endorsement that there was no sufficient balance in the account. As per allegation in the complaint, the said information of dishonouring of cheque was given to the applicant and the said amount of Rs.3.00 lacs was asked to be paid but the same was refused by the applicant where-after on 21.10.2013 the opposite party no. 2 issued notice under section 138 of Negotiable Instrument Act through his counsel but after passing of 15 days time when the money was not paid back, on 26.11.2013 opposite party no. 2 again sent a notice through his counsel to the applicant which did not return and thereafter on 18.12.2013 opposite party no. 2 filed a complaint under section 138 of Negotiable Instrument Act. The complainant/opposite party no. 2 had given statement under section 200 Cr.P.C. repeating the same version as were mentioned in the complaint, copy of the same has been annexed as Annexure-2.
4. The Magistrate without taking into account the facts and circumstances of the case, illegally passed the impugned order dated 4.2.2014, which is annexed as Annexure-3. In fact the applicant had not given any cheque to the opposite party no. 2 rather opposite party no. 2 fraudulently obtained the cheque regarding which the applicant could not know and when opposite party no. 2 issued notice on 21.10.2013 which was received by him, he came to know about the fraud and cheating committed by opposite party no. 2. It is further mentioned that no witness has been examined in respect of amount of Rs.3.00 lacs having been paid by the opposite party no. 2 to the applicant nor any date or time or place has been disclosed when the said amount was lent. The complaint was barred under section 142 of Negotiable Instrument Act which provides that it should be moved within one month of the date on which the cause of action arises while in the present case notice was sent on 21.10.2013 and the complaint has been filed on 18.12.2013 i.e. after 58 days. It is further mentioned that it is settled law that where two demand notices were served on the accused, the cause of action would arise only on expiry of 15 days time from the date of first notice. The subsequent notice would not give rise to any fresh cause of action. It is beyond imagination that the opposite party no. 2 would lend amount of Rs.3.00 lacs to the applicant without there being relationship between them. In fact, no such incident has happened as suggested by the opposite party no. 2. Neither any amount was taken by the applicant nor any cheque was issued by him in favour of the opposite party no. 2. So far as the cheque in question is concerned, it was dishonestly taken by the opposite party no. 2 from the applicant in which subsequently he filled up the amount; hence the summoning order deserves to be quashed. Reliance has been placed from the side of the learned counsel for the applicant on MSR Leathers vs. S. Palaniappan and another ((2013) 1 Supreme Court Cases 177, the relevant paragraphs are reproduced below.
"2. After entering appearance, the drawer filed an application seeking discharge on the ground that the payee could not create more than one cause of action in respect of a single cheque and the complaint in question having been filed on the basis of the second presentation and resultant second cause of action was not maintainable. The Magistrate accepted that contention relying upon a Division Bench decision of Kerala High Court in Kumaresan v. Ameerappa (1991) 1 Ker L.T. 893 and dismissed the complaint. The order passed by the Magistrate was then questioned before the High Court of Kerala who relying upon Kumaresan's case (supra) upheld the order passed by the Magistrate. The matter was eventually brought up to this Court by special leave. This Court formulated the following question for determination:
"Whether payee or holder of cheque can initiate proceeding of prosecution under Section 138 of Negotiable Instrument Act, 1881 for the second time if he has not initiated any action on earlier cause of action?"
3. Answering the question in the negative this Court held that a combined reading of Sections 138 and 142 of the Act left no room for doubt that cause of action under Section 142(b) can arise only once. The conclusion observed by the court is supported not only by Sections 138 and 142 but also by the fact that the dishonour of cheque gives rise to the commission of offence only on the failure to pay money when a notice is served upon the drawer in accordance with clause (b) of the proviso to Section 138. The Court further held that if the concept of successive causes of action were to be accepted the same would make the limitation under Section 142(b) otiose. The Court observed:
7. Besides the language of Sections 138 and 142 which clearly postulates only one cause of action, there are other formidable impediments which negate the concept of successive causes of action. One of them is that for dishonour of one cheque, there can be only one offence and such offence is committed by the drawer immediately on 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."
He has also relied upon the judgment of High Court of Delhi in the case of Neerja Parekh vs. Amit Enterprises, 2012 Law Suit (Del) 474 and the judgment of High Court of Madhya Pradesh in the case of Kapil Upadhyay vs. Milana Auto, 2006 Lawsuit (MP) 140.
5. From the side of the opposite party no. 2 counter affidavit has been filed in which it is stated that the applicant and the opposite party no. 2 were having good relation in the business because of which he had lent Rs.3.00 lacs to him when the same was demanded to enhance his business. When the said amount was demanded by the opposite party no. 2, the applicant had issued cheque no. 038386 of Union Bank Branch, Orai which was presented by him before the said Bank on 9.10.2013 but the same was returned by the Bank with an endorsement that there was no sufficient balance in the account of the applicant. The opposite party no. 2 thereafter sent information on 10.10.2013 in this regard to the applicant but the applicant refused to pay the said amount then he gave notice through his counsel demanding the said amount on 21.10.2013 but even then the applicant did not pay back the said amount thereafter the opposite party no. 2 sent second notice through his counsel on 26.11.20013 but in spite of that the said amount was not returned, hence he had filed the present complaint. It is further mentioned that his statement was recorded under section 200 Cr.P.C by CJM, Orai and the summoning order against the applicant has been rightly issued under section 138 of Negotiable Instrument Act. The opposite party no. 2 had informed the applicant through notice dated 21.10.2013 but he did not take any care to make the payment of the amount which was mentioned in the notice, hence reminder was issued but even then the said amount was not paid. The cause of action has arisen on 26.11.2013 and the complaint was filed within time. Therefore, the complaint is not barred under section 142 of Negotiable Instrument Act. Therefore, the offence is made out against the accused-applicant. The impugned judgment deserves to be upheld and the application deserves to be dismissed.
6. During oral argument, learned counsel for the applicant has mainly argued that as per the case of the complainant, the cheque was presented on 9.10.2013 and on the same day it got dishonoured, where-after first notice was sent to the applicant on 21.10.2013 and its reminder was sent on 26.11.2013 while the complaint was moved on 18.12.2013, therefore, the cause of action should not be taken to have arisen on 26.11.2013 rather the same should be taken to have arisen on 21.10.2013 when the first notice was sent and therefore, from the said date, the complaint is apparently filed beyond 30 days which makes it time barred. He further argued that the date of giving money by the opposite party no. 2 to the applicant and the witness before whom the said money was given, have not been disclosed which clearly casts doubt upon the said payment of amount.
7. Both the above points raised by the learned counsel for the applicant have been rebutted by the learned counsel for the opposite party no. 2 stating that the cause of action could be treated to have arisen on 26.11.2013 and from that date, the complaint would be well within time of 30 days as per statutory provision.
8. After having heard learned counsel for the both the parties, I am of the opinion that the accused-applicant has not taken notice of proviso of section 142 of Negotiable Instrument Act, which provide 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].
(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.
Explanation- For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.
9. It is very much clear by the above-mentioned proviso that though the complaint is required to be submitted within one month from the date on which the cause of action arises but by adding the provision/proviso stated above, by bringing amendment with effect from 06.02.2003, cognizance of the complaint may be taken by the court even after the prescribed period of 30 days, if the complainant satisfies the Court that he has sufficient cause for not making the complaint within said period.
10. It would be pertinent to refer here to section 138 of the said Act also, which is reproduced herein below.
"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."
11. The above quoted sub-clause (b) of the said section lays down that payee or the holder in due course of the cheque, may make a demand for payment of money by giving a notice in writing to the drawer of cheque within 30 days of the receipt of information by him from the bank regarding return of the cheque as unpaid. In the case in hand, it is apparent that the cheque which is alleged by the opposite party no. 2 to have been handed over by the accused-applicant, was presented before the Bank on 9.10.2013 which was returned by the bank with an endorsement that there was no sufficient balance in the account of the applicant and information regarding this was sent by the opposite party no. 2 immediately to the accused-applicant on 10.10.2013 but the applicant refused to make the payment, pursuant to which opposite party no. 2 issued notice through counsel for demanding Rs.3.00 lacs on 21.10.2013 i.e. within 12 days from the information being given by the Bank about dishonour of the cheque. Thereafter, the opposite party no. 2 sent another notice through his counsel on 26.11.2013 to the applicant, which was within 17 days of the information give by the bank with respect to dishonour of the cheque. It is apparent from the said date that from 9.10.2013 when the cheque was presented before the bank and was returned unpaid, the reminder notice dated 26.11.2013 was given within 17 days, however, the same could have been given within upto 30 days. Therefore, the second notice (reminder) would fall within the time limit prescribed under section 138 (B) of the Act. Nowhere has it been laid-down that in case of non-payment of the cheque, if notice is issued to the defaulting accused, its reminder is barred. In the present case, in my view the opposite party no. 2 cannot be put to disqualification only because he issued reminder on 26.11.2013 with respect to the accused-applicant not having paid the amount and asking for the same to be paid. I have already held that the said reminder was within 17 days, sent to the applicant instead of the statutorily laid-down period of 30 days.
12. Now, I would like to draw attention to the proviso to section 142 of the abovementioned Act which clearly lays down that the complaint is required to be submitted within one month from the date on which cause of action arises. However, the said complaint can also be preferred even after the statutory time period of 30 days, if the complainant satisfies the Court that there was sufficient cause for not moving the complaint within the said time limit. This provision can be interpreted to mean that the trial court would, after parties have led evidence before it, judge whether there was sufficient reasons shown by the complainant/opposite party no. 2 or not for having moved the complaint beyond 30 days. In the present case, if the time period is calculated from the first date of notice being sent to the accused-applicant i.e. 21.10.2013, the complaint would appear to fall beyond 30 days limit but in that case also the trial court would be expected to assess the reasons why the said delay was committed on the basis of evidence, which would be adduced by the complainant. However, in the present case, in my view, I have already held that the reminder dated 21.10.2013 of the notice would certainly be treated to be a date on which the cause of action has arisen because the same being within 30 days of the information being given by the bank regarding dishonour of cheque, therefore, the complaint should be treated well within time. Therefore, in neither situation whether the complaint be treated to have been filed beyond limit of statutory period or within the limit, the entire matter has to be decided by the trial court on the basis of evidence to be led by both the sides and it would be highly improper to disqualify the opposite party no. 2 from proceeding with the complaint only because a technical flaw is being raised that the cause of action would be treated to have arisen on the date of first notice i.e. 21.10.2013.
13. The rulings which have been relied upon by the learned counsel for the applicant which have been cited above, do not appear to deal with this issue as to whether, in case a reminder notice is issued, date of issuance of the same could be treated to be the date on which the of cause of action would be treated to have arisen.
14. In view of above, I am of the view that this application deserves to be dismissed and it is accordingly dismissed. The interim order, if any stands vacated.
Dated:26.07.2019 AU