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TMI Blog2014 (8) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... hs; (ii) Cheque No. 545420, drawn on ICICI Bank, for Rs. 20 lakhs; and (iii) Cheque No. 545409, drawn on ICICI Bank, for Rs. 10 lakhs. When the appellant presented the said cheques in his Bank for realization, they were dishonoured by the respondent's banker with remarks 'Stop Payment'. 4. The appellant, after receiving the communication from his banker about the dishonour of Cheques, issued a handwritten notice (Annexure P4) to the respondent on 27th April, 2012 calling upon him to make the payment. Upon non-compliance by the respondent, a formal legal notice dated 24th May, 2012 (Annexpure P5) was issued under Section 138/142 of the Act requiring the respondent to pay the cheques amount along with interest and costs. In his reply to the legal notice, the respondent totally disagreed with the allegation of taking loan from the appellant. Subsequently, the appellant filed a Complaint Case against the respondent invoking Sections 138, 141 and 142 of the Act and Section 420, of the Indian Penal Code. The Metropolitan Magistrate took cognizance and summoned the respondent who pleaded not guilty and claimed to be tried. 5. During the pendency of trial, the respondent filed Criminal M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant to plead for sufficient cause for condonation of delay as the question of delay did not arise before the Trial Court. While issuing process, the Trial Court was clearly of the view that the Complaint was within limitation on the basis of averments made in the Complaint. Therefore, the occasion did not arise for the appellant to raise the plea of 'sufficient cause' for the delay. Moreover, the respondent had also not raised the question of limitation before the Trial Court and the issue of limitation was raised for the first time before the High Court. 9. Even otherwise, before quashing the criminal proceedings on the ground of limitation, the High Court could have decided whether sufficient cause was made out by the appellant under the proviso to Section 142(b) of the Act, and if satisfied, it could have condoned the delay. Alternatively, the High Court could have remanded the matter to the Trial Court to determine the issue. In support of his submissions, he placed reliance on a judgment of this Court in Rakesh Kumar Jain Vs. State (Through CBI) (2000) 7 SCC 656, in which while considering the provisions of Section 473, Cr.P.C. and deciding the question whether on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e given in writing within fifteen days of receipt of information from the bank regarding return of the Cheque as unpaid and in the notice a demand for payment of the amount of the Cheque has to be made. So, learned counsel argued that looking at this settled legal position, the first notice issued by the appellant on 27th April, 2012 had since fulfilled the criteria laid down by this Court, the same has to be treated as 'notice' within the meaning of Section 138(b) of the Act. Therefore, he submitted that the High Court was right in considering the handwritten note as 'notice' for the purpose of calculating delay in filing the Complaint and it rightly declared that the Complaint was barred by limitation. 12. Learned counsel for the respondent further contended that even though the proviso to Section 142(b) of the Act facilitates condonation of delay if the complainant satisfies the Court that he had cogent reasons for not making the complaint within the limitation period, in the present case the complainant had made no request before the High Court for availing such benefit of condonation of delay. To substantiate his argument, learned counsel relied upon the counter affidavit fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pended 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 the Cheque, within fifteen days of the receipt of the said notice." 16. Section 142 of the Act also puts a limitation on the power of the Court to take cognizance of the offences, which reads as under: 142. Cognizance of offences-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dates that it should be issued in writing within thirty days (w.e.f. 6-2-2003) of receipt of information from the banker about the dishonour of Cheque, with a demand to the drawer for making payment of the said amount. 19. We have perused the handwritten note dated 27th April, 2012 (Annexure P4) and found that it was issued within the mandatory period of thirty days of dishonour of cheques and contained (a) the subject amount of Rs. 60,00,000/- given by the appellant as loan to the respondent under promissory notes; (b) the details of Cheque numbers and dates of issue with amounts and particulars of Bank; (c) Returning of Cheques by the banker dishonouring them on the ground of 'Stop Payment' by the respondent; (d) a demand for immediate repayment of the amount; and (d) a caution to the respondent that in case of failure on the part of respondent, the appellant would initiate legal proceedings. Thus, in our opinion, the handwritten note dated 27th April, 2012 fulfilled the mandatory requirements under clause (b) of proviso to Section 138 and could be said to be a valid 'notice' in the light of this Court's Judgment in Central Bank of India & Anr. (supra). Moreover, this document ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason of 25 days delay, we strongly feel that the appellant should not have been deprived of the remedy provided by the Legislature. In fact, the remedy so provided was to enable a genuine litigant to pursue his case against a defaulter by overcoming the technical difficulty of limitation. Hence, the High Court has committed an error by not considering the issue of limitation on merits. 23. In view of the settled principles of law in Rakesh Kumar Jain, MSR Leathers. Subodh S. Salaskar (supra) and in the peculiar facts and circumstances of the case, we are of the considered opinion that the High Court was not right in quashing the complaint merely on the ground that complaint is barred by limitation, that too a plea which was taken for the first time before the High Court. On the other hand, the High Court ought to have remanded the matter to the Trial Court for deciding the issue of limitation. 24. At the same time, we want to make it very clear that by this observation we are not laying down a legal proposition that without even filing an application seeking condonation of delay at an initial stage, complainant can be given opportunity at any stage of the proceeding. As already ..... X X X X Extracts X X X X X X X X Extracts X X X X
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