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TMI Blog2008 (8) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... in cash. Admittedly, the cheques were presented before the bank on 10.01.2001. They were returned to the respondent No. 1 by the bank alleging that no such account, in the name of the appellant was in operation. A legal notice dated 17.01.2001 was sent by speed post asking the appellant to pay the said amount of Rs. 1,70,000/- failing which legal action including criminal action would be taken against him. 5. A complaint petition alleging commission of an offence under Section 138 of the Act, however, was filed only on 20.04.2001. 6. Indisputably, the complaint petition was sought to be amended for adding Section 420 of the Indian Penal Code in the complaint petition. The said application was allowed by an order dated 14.08.2001. 7. Appellant filed an application for discharge on 16.12.2003 inter alia on the premise that the said complaint petition was barred by limitation. It was dismissed by an order dated 14.11.2006. The revision application filed by the appellant before the learned Additional Sessions Judge was also dismissed. A criminal writ petition filed by the appellant marked as Criminal Writ Petition No. 330 of 2007 before the High Court of Bombay has been dismissed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y additional powers have been conferred upon the court to take cognizance even after expiry of the period of limitation by conferring on it a discretion to waive the period of one month. 12. Before embarking on the questions raised, we may notice that the proviso appended to Section 138 of the Act limits the applicability of the main provision stating: "138 - Dishonour of cheque for insufficiency, etc., of funds in the account *** *** *** Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts made in the complaint petition in regard to service of notice are in the following terms: "8. I say that the said Bank of the Accused, returned / dishonoured Cheque No. 460158 dated 28.09.2000 of Rs. 1,70,000/- drawn on Bank of India, Maheshwari Udyan Branch, Mumbai, under Bank remark "NO SUCH ACCOUNT WITH US". The said remark was given in handwriting by the Branch Manager of the Bank of India, Maheshwari Udyan Branch, Mumbai in its Bank Memo dated 10.01.2001, though in the said Bank Memo at Sr. No. 11, it is printed at 11(b) Account closed and at 11(c) no account. This Bank Memo was received by me on 17.01.2001. Attached herewith is Xerox copy of the said Cheque No. 460158 dated 28.09.2000 of Bank of India, 10.01.2001 and marked thereto as Exhibit "A" thereto which are very clear and self-explanatory. I am also attaching herewith Xerox copy of dishonoured Cheque No. 460157 dated 06.12.1996 of Rs. 26,900/- of the Accused drawn on Bank of India, Maheshwari Udyan Branch, Mumbai and marked it as Exhibit "B" thereto which speak much more about the Bank account No. 1365 of the Accused lying with his said Bank. 9. I say that immediately, vide my letter Ref. No. JMS/SSS/CRIM/01/2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the said complaint was stated in the following terms: "17. I say that the aforesaid cheque of the drawer, the Accused herein was returned by the Complainant's banker i.e. the Deccan Merchant Co-op. Bank Ltd. Ghatkopar (E) Branch, Mumbai 400 077, which is situated within the jurisdiction of this Hon'ble Court and, therefore, this Hon'ble Court is competent to take cognizances of this present complaint and try the same. The demand notice to the Accused was issued within the stipulated period and the present complaint has been filed within the prescribed period as provided under Section 142 (b) of the Negotiable Instruments Act, 1881 (as amended) and, therefore, the Accused has committed an offence punishable under Section 138 read with section 141 and section 142 of the N.I. Act 1881 (as amended) and Section 420 of the I.P.C. 18. I say that the Accused has drawn Cheque of post dated in Mumbai with intention to cheat me. Hence, the accused must have closed his Bank Account No. 1365 of Bank of India, Maheshwari Udyan Branch, Mumbai subsequently and now, after the receipt of my demand notice, the accused has refused to make the payment of his dishonoured cheques as above in Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from that date, as such, the same was filed well within time. We find that the point is concluded by a judgment of this Court in Saketh India Ltd. v. India Securities Ltd. in which case taking into consideration the provisions of Section 12(1) of the Limitation Act, it was laid down that the day on which cause of action had accrued has to be excluded for reckoning the period of limitation for filing a complaint under Section 138 of the Act. In the present case, after excluding the day when cause of action accrued, the complaint was filed well within time; as such the High Court was not justified in holding that there was two days' delay in filing the complaint. For the foregoing reasons, we are of the view that the High Court was not justified in quashing prosecution of the respondents." 21. In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfillment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under: "27. Meaning of service by post.-Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. A s observed in B haskaran case if the "giving of notice" in the context of Clause ( b ) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act." [Emphasis supplied] 23. The complaint petition admittedly was filed on 20.04.2001. The notice having been sent on 17.01.2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof, i.e., 16.02.2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter, i.e., on or about 2.03.2001. The complaint petition, therefore, should have been filed by 2.04.2001. 24. Ex facie, it was barred by limitation. No application for condonation of delay was filed. No appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous, effect will have to be given to the provision is question in accordance with its tenor. If the language is not clear then the court has to decide whether, in the light of the surrounding circumstances, retrospective effect should be given to it or not. (See: Punjab Tin Supply Co., Chandigarh etc. etc. v. Central Government and Ors., AIR 1984 SC 87). 9. There is nothing in the amendment made to Section 142(b) by the Act 55 of 2002 that the same was intended to operate retrospectively. In fact that was not even the stand of the respondent. Obviously, when the complaint was filed on 28.11.1998, the respondent could not have foreseen that in future any amendment providing for extending the period of limitation on sufficient cause being shown would be enacted." 26. Therefore, there cannot be any doubt whatsoever that the courts below committed a manifest error in applying the proviso to the fact of the instant case. If the complaint petition was barred by limitation, the learned Magistrate had no jurisdiction to take cognizance under Section 138 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so. No case for proceeding against the respondent under Section 420 of the Indian Penal Code is therefore, made out. 23. Filling up of the blanks in a cheque by itself would not amount to forgery. Whereas in the complaint petition, allegations have been made that it was respondent Nos. 2 and 3 who had entered into a conspiracy to commit the said offence as indicated hereinbefore, in the counter affidavit, it has been alleged that the employees of the Respondent Company did so." 29. The cheques were post dated ones. Admittedly they were issued in the year 1996. They were presented before the bank on a much later date. They were in fact presented only on 10.01.2001. When the cheques were issued, the accounts were operative. Even assuming that the account was closed subsequently the same would not mean that the appellant had an intention to cheat when the post dated cheques were issued. Even otherwise the allega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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