The accused in C.C.No.137/2007 on the file of the learned Judicial Magistrate No.V, Vellore has come forward with the present petition under Section 482 Cr.P.C for quashing the above said criminal proceedings.
2. The submissions made by Mr.J.Kathiresan, learned counsel for the petitioner were heard. The petition and the documents produced along with the petition were also perused.
3. The above said case, namely C.C.No.137/2007 was instituted on the file of the learned Judicial Magistrate No.IV, Vellore against the petitioner herein based on the complaint of the respondent herein preferred under
Section 200 Cr.P.C for an alleged offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
4. The petitioner has come forward with the present petition for quashing the above said criminal proceedings initiated against her on the ground that the complaint itself is an abuse of process of court. It is the contention of the petitioner that the wife of the respondent herein, as a client of the petitioner, used to visit petitioner's house regularly; that the petitioner's husband is running a primary school; that her cheque book and the school documents were missing from 22.09.2006 and she preferred a complaint on the file of Pallikonda Police Station, Vellore district informing the same to the police; that after investigation, she was issued a 'not traceable' certificate on 30.09.2006; that thereafter she received a lawyer's notice on behalf of the respondent herein, as if she had given a cheque for a sum of Rs.50,000/- and the same was dishonoured when presented for encashment and that only thereafter she came to know that the cheque book and the school documents would have been stolen by wife of the respondent herein. It is the further contention of the petitioner that though a 'not-traceable' certificate was issued on 30.09.2006 itself, she again preferred a complaint against the respondent herein and his wife Malarvizhi for the theft of the cheque book and school documents; that she had to approach this court by way of a petition in Crl.O.P.No.7525/2007 to get an order on 20.03.2007 directing the police to register a case and investigate the same in accordance with law and that only pursuant to the said direction, a case was registered against the respondent herein and her husband in Cr.No.134 of 2007 on the file of Pallikonda Police Station. The petitioner has also contended that one of the cheque leaves detached from the cheque book stolen by the wife of the respondent was filled up, presented for collection and a case has been instituted after complying with the formalities of instituting a private complaint for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. According to the petitioner the complaint is nothing but an abuse of process of court.
5. The petitioner has sought for an order quashing the complaint on yet another ground also. According to the petitioner, the respondent should have sent the statutory notice under Section 138 proviso (b) within 15 days from the date of receipt of intimation of dishonour of the cheque and that since the statutory notice was issued beyond the said period of 15 days, the complaint itself was incompetent and barred by limitation.
6. This court, upon hearing the submissions made by the learned counsel for the petitioner in respect of the above said contentions raised by the petitioner in this petition and after perusing the petition and the documents filed along with the petition in the form of a typed set of papers, comes to the conclusion that all the allegations made by the petitioner in the petition can be raised as plea of defence before the trial court and that they cannot be the grounds on which the complaint itself can be put to death at the threshold, as they touch the merits of the case. No procedural irregularity has been alleged in the petition.
7. One of the grounds alleged in the petition is that the complaint itself is barred by limitation since according to the petitioner, the statutory notice under Section 138 proviso (b) of the Negotiable Instruments Act, 1881 was not given within the time stipulated therein. According to the petitioner, the time allowed for issuing the statutory notice is 15 days from the date of receipt of intimation of dishonour of the cheque. In support of the contention of the petitioner, reliance was made on the judgment of a learned single judge of this court in S.A.Balan Vs. G.Kaliappan reported in 2008 (5) CTC 425. Relying on the decision made by the Hon'ble Supreme Court in M/s.Uniplas India Ltd. and others v. State (Govt. of NCT of Delhi) and another reported in 2001 (3) CTC 309, wherein it had been observed as follows:
"Negotiable Instruments Act, 1881, Section 138 and
142(b) Cause action What is Cause of action would commence on payee making demand on drawer by giving notice in writing demanding payment on dishonoured cheque within 15 days of information of such dishonour Crucial issue would be whether notice was issued before expiry of 15 days or after expiry of 15 days of information of dishonour No cause of action arises if no notice is sent after 15 days Any notice sent after expiry of 15 days need not snowball into cause of action.(Paras 12, 13 & 14)"
The learned judge observed that the time of limitation for issuing statutory notice was 15 days from the date of receipt of intimation of dishonour of the cheque from the bank.
8. Relying on the said observation made by the learned single judge of this court in the above said case, namely S.A.Balan Vs. G.Kaliappan reported in 2008 (5) CTC 425, the petitioner has contended that since the statutory notice in the case on hand was issued after the expiry of a period of 15 days from the date of receipt of intimation from the bank, no cause of action had arisen and the complaint itself is barred by limitation. With great respect to the Hon'ble single judge, I am not in a position to accept the correctness of the view expressed in the above said case. Of course, it is true that judicial propriety requires referring of the issue to a larger bench when a co-ordinate bench would differ from the view of another coordinate bench in respect of a proposition of law. But when the decision of the earlier co-ordinate bench is per incurium, it shall not be necessary to refer the question to a larger bench. Section 138 proviso (b) of Negotiable Instruments Act, 1881, as it was originally enacted had prescribed only 15 days period from the date of receipt of information from the bank regarding the return of the cheque, for the issue of the statutory notice under the said proviso. However, an amendment was brought subsequently by Act 55 of 2002 with effect from 06.02.2003 prescribing 30 days as the period allowed for issuing statutory notice. Though the cheque concerned in the said case was dishonoured subsequent to the above said date, the Hon'ble single judge in the said case, without adverting to the amendment introduced and brought to force with effect from 06.02.2009, observed that the limitation for issuing statutory notice was only 15 days.
9. The decision of the Hon'ble Supreme Court relied on therein had been rendered in 2003 itself, namely prior to the introduction of the said amendment. The ratio decided by the Hon'ble Supreme Court therein, namely in M/s.Uniplas India case was that in case the statutory notice was not issued within the period allowed under proviso (b) to Section 138, no cause of action would arise and that any notice sent after the expiry of the said statutory period, need not snow ball into a cause of action. While applying the said ratio to the changed circumstances, namely a dishonour of cheque after the amendment prescribing a longer period (30 days) for issuing statutory notice was brought to force, it was inadvertently observed that the period of limitation for issuing statutory notice was 15 days. As the said decision was rendered without considering the change made in law, the same has to be held per incurium and hence shall not be a binding precedent.
10. In this case the cheque was returned without payment on 05.02.2007. The intimation regarding the return of the cheque unpaid was received by the respondent herein, as per the averment made in the petition, on 05.02.2007 itself. Within 30 days thereafter the statutory notice could have been given. Admittedly, the statutory notice under Section 138 proviso (b) of Negotiable Instruments Act, 1881 was issued on 26.02.2007 i.e. well within the period of 30 days prescribed in the said proviso. Therefore, the contention of the petitioner that no cause of action did arise from the issue of the said notice, cannot be accepted. The prayer for quashing based on the above said contention deserves to be rejected as untenable.
11. Let us now consider the other grounds on which the petitioner seeks quashing of the complaint. It is not in dispute that the cheque in question pertains to the account maintained by the petitioner in her bank. It is also not in dispute that the cheque contains her signature. It is also not in dispute that the said cheque, when presented for encashment was returned unpaid with a dishonour note "funds insufficient". Statutory notice was also given within the time prescribed by the statute. The complaint has been preferred after a period of 15 days from the date of receipt of statutory notice received by the petitioner herein. Therefore, no procedural defect can be found in the institution of the case on private complaint. It is also not the case of the petitioner that the averments found in the complaint are not enough to disclose the commission of an offence punishable under Section 138 of the Negotiable Instruments Act. On the other hand, she has come forward with a plea that there was foul play on the part of the respondent herein and the complaint itself has been preferred based on a stolen cheque leaf. As pointed out supra, the said contention, can at best be raised as a plea of defence before the trial court and cannot be the basis on which the petitioner can seek quashing of the complaint unless more concrete materials are placed.
12. The petitioner relies on the documents produced as copies of a complaint lodged with Pallikonda Police Station on 22.09.2006 and a "not traceable" certificate issued by the police on 30.09.2006. The petitioner is an advocate. She knows very well the consequences that may flow, if a missing cheque book comes in the hands of other persons. Therefore, it is quite improbable that the petitioner would have kept the cheque leaves signed. Secondly, if at all such signed cheque leaves were found missing, besides giving a complaint to the police, she would not have forgotten to give instructions to her banker not to honour such cheque/cheques, if presented for collection. In fact the cheque numbers have been furnished in the alleged complaint given to the police on 22.09.2006. Therefore, the petitioner cannot state that she had forgotten the numbers of the cheque leaves and hence she was not able to instruct the bankers, with required particulars, not to honour the cheque/cheques, if presented for encashment.
13. Apart from the same, the complaint stating that a cheque book containing 18 cheque leaves was missing, is said to have been lodged with Pallikonda Police Station on 22.09.2006. No case was registered and no receipt was given. The petitioner has not produced any receipt to show that such a complaint was lodged. However, she was able to obtain a certificate from the Sub-Inspector of Police, Pallikonda Police Station on 30.09.2006 to the effect that the missing articles could not be traced. Within a span of 7 days, the Sub-Inspector of Police gave such a 'not traceable' certificate. Such a certificate does not contain either a crime number or CSR number or the particulars of the receipt issued for the complaint. Therefore, there is possibility of holding that the petitioner, being an advocate, could have exerted influence with the Sub-Inspector of Police and obtained such a certificate. Even after obtaining such a "not traceable" certificate from the police, the petitioner has not chosen to issue any instruction to the bank not to honour those cheques, if presented for encashment. That itself will make it possible to make an inference that the complaint and the certificate could have been created antedating the same after the statutory notice was issued by the respondent to the petitioner herein.
14. The statutory notice under Section 138 proviso (b) was issued by the respondent on 26.02.2007 but the petitioner did not receive the said notice and same was returned. On the other hand, the petitioner has chosen to lodge a complaint with the Inspector of Police, Pallikonda police station on 03.03.2007. Immediately thereafter she approached this court by way of a petition under
Section 482 Cr.P.C in Crl.O.P.7525/2007 and obtained an order directing registration of a case based on such complaint. Only thereafter a case was registered on the file of Pallikonda police station in Cr.No.134/2007 for an offence under
Section 380 IPC against the respondent herein and her husband. All those documents have been brought into existence only after the receipt of the statutory notice issued by the respondent herein. Whether those documents are genuine or were created for the purpose of defending the case preferred by the respondent herein against the petitioner herein for an offence under Section 138 of the Negotiable Instruments Act, has got to be tried and decided. Those documents are not clinching documents to come to the conclusion that the criminal case was instituted against the petitioner based on a stolen cheque leaf. The said contention of the petitioner should be canvassed as a plea of defence in the criminal case instituted against her. The improbabilities of the contentions raised by the petitioner herein has been highlighted only to show that the same cannot be the ground on which the complaint itself can be quashed. The petitioner has not proved that the institution of the case against her for an offence under Section 138 of the Negotiable Instruments Act was an abuse of process of court.
15. For all the reasons stated above, this court comes to the conclusion that the petitioner has not made out a case for quashing of the criminal proceedings against her instituted on private complaint for an alleged offence punishable under Section 138 of the Negotiable Instruments Act and that this petition deserves to be dismissed, even without notice to the respondent.
16. In the result, this petition is dismissed. Consequently, the connected miscellaneous petition is also closed. However, by way of abundant caution, it is made clear that any observation made in this order shall not be construed to be a view expressed on the merits of the case. The trial court shall consider the case on its own merit without being influenced by any of the observations made herein.
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