2019 (7) TMI 1919 - HC - Indian Laws

Dishonor of Cheque - complaint filed beyond the period of limitation - Section 142 of the N.I. Act - HELD THAT - 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 - 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. 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 - 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. 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 - 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. Criminal Revision petition is allowed.

Summary

Issues:
Challenge to judgment of conviction and order of sentence under Section 138 of the Negotiable Instruments Act - Complaint filed beyond the period of limitation.

Analysis:
The petitioner/accused challenged the judgment of conviction and order of sentence passed by the Fast Track Court-10 in Criminal Appeal No. 419/2014, confirming the judgment of the XIII Additional Chief Metropolitan Magistrate in C.C. No. 13021/2011. The complaint was filed under Section 138 of the Negotiable Instruments Act, alleging dishonor of a cheque issued by the accused. The complainant proved the case, leading to the conviction of the accused and imposition of a fine. The accused filed an appeal, which was dismissed, prompting the petitioner to approach the High Court.

The main ground raised in the revision petition was that the complaint was beyond the period of limitation as prescribed by law. The petitioner's counsel argued that the complaint was filed late and no application for condonation of delay was made under Section 142 of the N.I. Act. The absence of the respondent and their counsel during the hearing was noted by the Court.

The crux of the issue revolved around the timelines specified in Section 138 and Section 142 of the N.I. Act. The proviso under Section 138 mandates that the cheque must be presented within a specific period, and a demand notice must be issued within thirty days of receiving information about the dishonor. The complainant then has 15 days to file a complaint, with a total period of 30 days after the cause of action. Failure to adhere to these timelines can render the complaint invalid.

The petitioner's counsel argued that the complaint was filed four days beyond the permissible period, highlighting a delay in compliance with the statutory requirements. The Court referred to the provisions of Section 142(b) of the N.I. Act, which allows for the filing of a complaint within one month of the cause of action under specific circumstances. However, in this case, the complaint was filed after the prescribed period without any application for condonation of delay.

The Court, considering the arguments and legal provisions, found merit in the petitioner's contentions. Relying on the decision in T.S. Muralidhar Vs. H. Narayana Singh, the Court allowed the Criminal Revision petition, setting aside the judgments of the lower courts. The accused was acquitted, and the trial Court was directed to refund the fine deposited by the petitioner.

In conclusion, the High Court allowed the revision petition, emphasizing the importance of adhering to the statutory timelines prescribed under the N.I. Act. The judgment highlighted the necessity for strict compliance with the procedural requirements to maintain the validity of complaints under Section 138.