2020 (9) TMI 390 - HC - Indian Laws

Dishonor of Cheque - time limitation - Section 142 of N.I. Act - HELD THAT - Instant application has been after three years of issuance of impugned summoning order, which was passed on 16.08.2017 and as no satisfactory explanation for delay has been given, thus there being undue delay and latches on the part of applicant in filing of this application, this application is liable to be dismissed on this ground alone. Even on merits, so far the contention that impugned complaint is barred by period of limitation prescribed under section 142 NI Act is concerned, it may be stated that a bare perusal of provisions under section 138 and 142 of NI act, makes it clear that the drawee has to send a legal notice within 30 days from the date of return dishonour of cheque and asking for payment mentioned in the cheque to be maid within the 15 days. On expiry of fifteen days from the service of notice, the complaint may be filed within one month. In the instant case it may be seen that as per allegations of complaint, the cheque was issued by the applicant on 18.01.2017, which was presented by complainant in his bank Allahabad Bank, Mawana on 02.02.2017. This cheque was dishonored on 03.02.2017 due to insufficiency of funds in account of applicant and memo of bank to this effect was received by the complainant on 04.02.2017 - as the notice was served on 17.03.2017, thus the cause of action arose on 15.04.2017 when the applicant failed to make payment within 15 days after receipt of notice, and thereafter the complaint was filed within the prescribed period of one month after cause of action arose. All the conditions are satisfied for initiation of proceedings under section 138 N. I. Act and it can not be said that complaint filed by O.P. No. 2 is barred by limitation and therefore the contention raised by learned counsel has no force - The instant application under section 482 CrPC being devoid of any merit is hereby dismissed.

Summary

Issues:
1. Application to quash impugned order under Section 138 Negotiable Instruments Act.
2. Delay in filing the application.
3. Compliance with provisions of Section 142 N.I. Act.
4. Barred by limitation.
5. False and baseless allegations with mala fide intention.

Analysis:

1. The applicant filed an application under Section 482 Cr.P.C. seeking to quash the order dated 16.08.2017, passed by the Court below in a complaint case under Section 138 Negotiable Instruments Act. The counsel argued that the summoning order was against the law and no prima facie case was made out. The provisions of Section 142 N.I. Act were cited, claiming non-compliance with them. The State's counsel contended that the application was filed after a significant delay of three years, and there was no illegality in the impugned order.

2. The Court noted the delay in filing the application, which was after three years of the issuance of the summoning order. As no satisfactory explanation for the delay was provided, the Court considered the undue delay and latches as grounds for dismissal of the application.

3. Regarding compliance with Section 142 N.I. Act, the Court referred to the Supreme Court's interpretation in Dashrath Rupsingh Rathod v. State of Maharashtra and Vinay Kumar Shailendra v. Delhi High Court Legal Services Committee cases. The Court analyzed the timeline of events related to the dishonored cheque, the notice sent, and the filing of the complaint. It concluded that all conditions for initiating proceedings under Section 138 N.I. Act were satisfied, and the complaint was not barred by limitation.

4. The Court addressed the contention of false and baseless allegations made with mala fide intention. It emphasized that at the stage of issuing the process, the Magistrate needs to determine if there are sufficient grounds for proceeding, not for conviction. The Court highlighted that the question of evidence adequacy for conviction is decided at trial, not during the inquiry stage. It found that a prima facie case was established against the applicant, and no material illegality was found in the summoning order.

5. Ultimately, the Court dismissed the application under Section 482 Cr.P.C. as it lacked merit, considering the established prima facie case against the applicant and the absence of substantial errors in the summoning order.