2019 (7) TMI 1006 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - Section 138 of the Negotiable Instruments Act, 1881 - maintainability of complaint on the ground of time limitation - HELD THAT - It appears from the material on record that the trial Court will have to find out after appreciation of documents on record, whether the complaint filed by the first Respondent was within time or otherwise. Prima facie it appears that notice sent on residential address of the applicant was received by the complainant i.e. by first Respondent on 15th February 2018 and complaint was filed on 14th March 2018. Therefore, at the threshold it cannot be concluded that complaint was not filed within limitation. Therefore, trial Court will have to find out upon appreciation of documents placed on record, whether the applicant had knowledge of accessing email, and as a matter of fact, whether he received the email sent by the applicant on 27th January 2018. Prima facie it appears that signature on the subject cheque is not denied by the present applicant. In the light of the discussion in forgoing paragraphs this Court is of the opinion that no interference is called for in the order of issuance of process. Hence, application stands rejected. Application dismissed.

Summary

Issues Involved:
1. Validity of the complaint under Section 138 of the Negotiable Instruments Act, 1881.
2. Limitation period for filing the complaint.
3. Allegation of misuse of an old cheque.
4. Applicant's failure to reply to statutory notice.
5. Trial court's application of mind in issuing the process.

Issue-Wise Analysis:

1. Validity of the complaint under Section 138 of the Negotiable Instruments Act, 1881:
The applicant is accused of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, for issuing a cheque that was dishonored due to insufficient funds. The complaint alleges that the accused had issued a cheque for ?30,00,000/- to the complainant, which was dishonored upon presentation. The complainant issued a statutory notice to the accused, which was not replied to, leading to the filing of the complaint.

2. Limitation period for filing the complaint:
The applicant contends that the complaint filed on 14th March 2018 is not maintainable as it was not filed within the period of limitation. The cheque was issued on 15.12.2017 and presented on 08.01.2018, and dishonored on 09.01.2018. The statutory notice was issued on 19.01.2018, and the notices sent to the business and residential addresses were returned on 06.02.2018 and 15.02.2018, respectively. The court noted that the complaint was filed within the prescribed time limit after the return of the notice sent on 15.02.2018, making it prima facie within the limitation period. The trial court will need to appreciate the documents to determine the exact limitation period.

3. Allegation of misuse of an old cheque:
The applicant argues that the cheque in question was part of a cheque book issued on 09.12.2011, and due to a change in the format of cheques, a new cheque book was issued. The applicant contends that the complainant misused an old cheque. The court stated that it is for the trial court to consider this contention after appreciating the material placed on record. The court referred to a precedent that allows a person to sign and deliver a blank or incomplete cheque, which the holder can fill up.

4. Applicant's failure to reply to statutory notice:
The applicant claims that the statutory notice was replied to via email on 27.01.2018. However, the complainant, who is not conversant with email technology, did not acknowledge this. The trial court will need to determine whether the applicant had knowledge of and access to the email, and whether the email was indeed received.

5. Trial court's application of mind in issuing the process:
The applicant contends that the trial court mechanically issued the process without applying its mind to the facts of the case. The court held that prima facie, the trial court's order of issuance of process does not warrant interference. The trial court will need to appreciate the documents and evidence during the trial to determine the validity of the complaint.

Conclusion:
The application challenging the order of issuance of process was rejected. The observations made are prima facie and confined to the adjudication of the present application. The trial court will not be influenced by these observations and will consider all contentions during the trial.