1999 (5) TMI 580 - SC - Companies Law

Dishonor of cheque - Held that - Appeal allowed. 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. In this case the complainant has admitted the fact that written notice was sent by fax. Appellant has admitted its receipt on the same date. (It must be remembered that respondent has no case that fax has not reached the appellant on the same date). The last day when the respondent could have filed the complaint was 26-7- 1996. But the complaint was filed only on 8-8-1996 So the court has no jurisdiction to take cognizance of the offence on the said complaint.

Summary

Issues Involved:
1. Jurisdiction of the Magistrate to take cognizance of the offence.
2. Validity of the notice sent by fax under Section 138(b) of the Negotiable Instruments Act.
3. Calculation of the limitation period for filing the complaint.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Magistrate to Take Cognizance of the Offence:
The appellant contended that the magistrate lacked jurisdiction to take cognizance of the offence as the complaint was filed after the expiry of the statutory period of 30 days from the date of cause of action. Section 142 of the Act explicitly states that no court shall take cognizance of any offence unless the complaint is made within one month of the date on which the cause of action arises. The Supreme Court emphasized that the completion of the offence is the immediate forerunner of the cause of action, and the period of limitation for filing the complaint starts running from that point.

2. Validity of the Notice Sent by Fax Under Section 138(b) of the Negotiable Instruments Act:
The respondent argued that the cause of action arose from the date the appellant received the notice sent by registered post, not the fax. However, the Supreme Court clarified that the notice in writing, as required by Section 138(b), does not necessitate sending it by registered post. Modern devices such as fax are valid modes of communication. The Court highlighted that the legislature must be presumed to have been aware of modern communication methods when enacting the law. Therefore, the faxed notice was deemed compliant with the legal requirement.

3. Calculation of the Limitation Period for Filing the Complaint:
The crucial point was determining when the cause of action arose. The Supreme Court held that the cause of action arose on the expiry of 15 days from the date the faxed notice was received by the appellant. Since the fax was received on 11-6-1996, the cause of action arose on 26-6-1996, and the limitation period for filing the complaint expired on 26-7-1996. The complaint filed on 8-8-1996 was thus beyond the permissible period, rendering the magistrate's cognizance of the offence invalid.

Conclusion:
The Supreme Court concluded that the magistrate had no jurisdiction to take cognizance of the offence as the complaint was filed beyond the statutory period. The notice sent by fax was valid, and the cause of action arose from the date of its receipt. Consequently, the appeal was allowed, and the impugned judgment was set aside, resulting in the dismissal of the complaint related to cheque No.188.