IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.404/2015 BETWEEN:
Sri Venkatesh B.C. S/o D.V.Chadraiah Aged about 45 years Proprietor of S.G. Industries, R/at No.17/4, Malur Road, Ammerahalli, Kolar Taluk, Kolar-563 101.
(By Sri Ganesh G.G., Advocate) AND:
…Petitioner Sri Strategic Marketing and Research Team, Represented by its Partner Sri Anand Kumar, S/o K.Krishna Swamy Office at 253, 5th Block, 67th Cross, Rajajinagar, Bengaluru-560 010.
… Respondent (By Sri Chetan B. Angadi, Advocate - Absent) This Criminal Revision Petition is filed under Section 397 r/w. 401 of Cr.P.C praying to set aside the judgment dated 26.03.2015 passed by the Presiding Officer, Fast Track Court-X, Bengaluru, in Criminal Appeal No.419/2014 thereby confirming the judgment dated 27.03.2014, passed by the XIII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.13021/2011 and etc.
This Criminal Revision Petition coming on for Admission, this day the Court made the following:-
O R D E R The present petition has been filed by the petitioner/ accused challenging the judgment of conviction and order of sentence passed by Fast Track Court-10 at Bengaluru in Criminal Appeal No.419/2014 dated 26.3.2015 whereunder the judgment of the XIII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.13021/2011 dated 27.3.2014 was confirmed by dismissing the appeal.
2. I have heard the learned counsel for the petitioner/accused. The learned counsel for the respondent remained absent.
3. The facts of the case of the complainant before the Court below is that the complainant is dealing with sale of goods namely Phthalic Anhydride and in pursuant to orders placed by the accused from time to time the complainant has sold and supplied the LABSA to accused. Towards the value of supplied by complainant, he issued the invoice dated 23.10.2010 bearing No.30883 for Rs.7,14,357/-. Towards payment of outstanding amount due, the accused had issued cheque bearing No.205585 for a sum of Rs.7,14,357/- dated 9.11.2010 drawn on Karnataka Bank Limited, Kolar. When the complainant presented the said cheque for encashment, the said cheque returned dishonoured with an endorsement as “drawers signature incomplete/illegible/defers/read and funds insufficient” on 10.11.2010. Consequently, the complainant got issued legal notice to the accused on 3.12.2010 through RPAD and UCP. In spite of service of legal notice, the accused neither replied nor repaid the cheque amount within stipulated time. Hence, the complainant filed the complaint under Section 138 of the Negotiable Instruments Act (Hereinafter referred to as ‘the N.I. Act, for short).
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 and got marked 14 documents as Exs.P1 to P14 and thereafter statement of the accused was recorded under Section 313 of Cr.P.C. The accused has not led any evidence. After hearing, the Court below came to the conclusion that the complainant has proved the case and accused was convicted and imposed a fine of Rs.7,19,357/- and out of the said amount Rs.7,14,357/- has been paid to the complainant. Being aggrieved by the said order, the petitioner/accused has preferred the appeal in Criminal Appeal No.419/2014. The learned Fast Track Court-X Judge, Bengaluru, by order dated 26.3.2015 dismissed the appeal by confirming the judgment of the trial Court. Against the said judgment, the appellant/petitioner is before this Court.
5. Now in the revision petition, several grounds have been urged. The main grounds urged by the learned counsel for the petitioner/accused is that the complaint is filed beyond the period of limitation as contemplated under the law. It is his further submission that there is a provision under Section 142 of the N.I. Act for condonation of delay if any delay has been caused. No such application has been filed. On these grounds, he prayed to allow the petition and to dismiss the complaint filed by the complainant.
6. Respondent and his counsel remained absent.
7. Though the case was called at about 12.30 p.m. in the morning and subsequently it is taken up at 2.45 p.m. for hearing, there is no representation.
8. The main contention of the learned counsel for the petitioner/accused is that the complaint is barred by time. For the purpose of brevity I quote, Section 138 of the N.I. Act which 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 provision 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.
9. As per Section 138 of the N.I. Act, cheque has to be issued by the holder of account for payment of money to another person for discharge of debt or liability, such cheque returned unpaid for the reasons stated therein. As per the proviso, such cheque has to be presented to the bank within a period of six months or within the period of its validity whichever is earlier.
10. As per the proviso (b), the holder in due course of the cheque, as the case may be, must make a demand for payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of receipt of information by him from the bank regarding return of the cheque as unpaid and 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. It is thereafter, the complaint has to be filed within 15 days thereafter. As per Section 142 of the N.I. Act complaint has to be filed within 30 days after the cause of action.
11. It is the specific contention of the learned counsel for the petitioner/accused that the said cheque Ex.P2 was issued on 9.11.2010 and the said cheque was presented to Karnataka Bank Limited, Kolar on 10.11.2010 and it was returned with shara as ‘insufficient funds’ and it was given through bank RPAD and UCP. Thereafter, legal notice came to be issued on 3.12.2010. As per Ex.P8 same notice has been served to the accused on 18.12.2010. Thereafter, he has to wait for 15 days and the said period is going to be expired on 1.1.2011 and thereafter 30 days i.e. before 31.1.2011, the complaint ought to have been filed. But in the instant case, the complaint was admittedly filed on 3.2.2011, there is delay of 4 days in filing the complaint.
12. As per Section 142(b) of the N.I.Act 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 of the N.I.Act and then said complaint is said to be valid and the Court may take cognizance of the complaint and issue the summons to the accused. But in the said proviso it has given power to the Court that the cognizance of the complaint may be taken by the Court after the prescribed period of limitation, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within a period of thirty days from the said cause of action.
13. When the law itself contemplates 15 days time to pay the amount after service of notice and if the drawer fails to make the payment of the amount to the drawee within 15 days of the receipt of the notice, then under such circumstances the cause of action arises and then within one month a complaint has to be filed. Though under Section 142(b) of the N.I. Act the payee or holder in due course is entitled to file the complaint after the date of cause of action he has to make the application and satisfies the Court that he had sufficient cause for not making the complaint within such period.
14. Admittedly, the notice has been served to the accused on 18.12.2010 and 15 days time expires on 1.1.2011 from that date, within one month complaint ought to have been filed i.e. on or before 31.1.2011, but in the present case, the complaint has been filed on 3.2.2011.
Even the application as contemplated under Section 142(b) of the N.I.Act has also not been filed. Under such circumstances, the cognizance taken by the Court below after prescribed period of limitation is not correct and not justifiable and the Court below has got no jurisdiction to entertain such complaint filed beyond the period of limitation of 30 days i.e. after 31.1.2011. This aspect has not been properly considered and appreciated by the Courts below.
In order to substantiate the said contention petitioner has also relied upon the decision of the Apex Court in the case of T.S.Muralidahr Vs. H.Narayana Singh reported in 2010 Crl.LJ 3315.
15. Taking into consideration the above said facts and circumstances, the petitioner/accused has made out a case. Hence, Criminal Revision petition is allowed and the judgment passed by the Additional Sessions Judge, Fast Track Court-X at Bengaluru in Criminal Appeal No.419/2014 dated 26.3.2015 is set aside and consequently the judgment passed by XIII Additional Chief Metropolitan Magistrate in C.C.No.13021/2011 dated 27.3.2014 is set aside and accused is acquitted.
The trial Court is directed to refund the amount of fine deposited by the petitioner/accused on proper identification and acknowledgement.
Sd/- JUDGE *AP/-