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TMI Blog2018 (8) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... including disability to pay. Therefore, the offence would be complete, when the drawer ‘fails’ to make payment within the stipulated time, whatever be the cause for such failure. In view of conflicting decisions of two learned single Judges of this Court on the same issue and in view of the importance of resolving the important question of law that has arisen for consideration, this Court deems it fit to place the matter before a Division Bench in order to resolve the conflict and to come out with an authoritative pronouncement - this Court directs the Registry to place this matter before the Hon’ble Administrative Judge, so as to enable the Hon’ble Administrative Judge to consider constituting a Bench in order to hear the issue and to resolve the conflict and make an authoritative pronouncement on the issue. - Crl.O.P.(MD)Nos.5109 of 2018 and 5000 of 2018 and Crl.MP(MD)No.2496 of 2018 Crl.OP(MD)No.5109 of 2018 - - - Dated:- 10-8-2018 - N.ANAND VENKATESH, J. For the Petitioner : Mr.R.Jeyaratchagan For the Respondent : Mr.K.Rajeshwaran ORDER The criminal original petition in CRL OP(MD) 5109 of 2008 has been filed to quash the proceedings in STC No.630 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in 2001(1) CTC 48, 12.S.N.Mukherjee Another, Vs. NEPC Micon Ltd, reported in 2001(2) MWN (Cr) DCC (Mad) 89 and 13. I.S.P.Solutions India (P) Ltd others Vs. Kuppuraj, reported in 2006(2) MWN (Cr) (DCC) 18. 4.Per contra, learned Counsel for the respondents made the following submissions: The complaint is in the stage of examination of defence witnesses and already witnesses on the side of the complainant have been examined in chief and have also been cross examined by the petitioner and therefore, at this stage the petition to quash the proceedings should not be entertained. The learned Counsel submitted that on receipt of the statutory notice, three eventualities can happen, which are, a. The drawer of the cheque on receipt of the notice can pay the cheque amount. b. The drawer of the cheque, can receive the notice and maintain silence and in which cases on the expiry of the 15 days from the date of receipt of the notice, the cause of action will arise for filing complaint, and, c. On receipt of such notice, the drawer of the cheque can send a reply denying the liability and refuse to pay the cheque amount and in which case, it is not necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he public interest in ensuring the reliability of those involved in commercial transactions. It is quite evident that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of punitive nature, the provision for imposing a 'fine which may extend to twice the amount of the cheque' serves a compensatory purpose. The object is to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for the penalties in case of bouncing of cheques due to insufficient arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers. 9.It is true that proviso (c) to Section 138 of the Act, is mandatory and the same is clear from the line of judgments that have been cited by the learned Counsel for the petitioner. There are no two opinions on the ratio laid down in all these judgments. 10.The scheme of giving opportunity to the drawer of the cheque is to pay the cheque amount before permitting his prosecution, no matter whether offence is complete, is unique to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys prescribed is only to enable the petitioner / accused for making the payment and when the object and aim of the particular provision is to give sufficient time for the petitioner / accused to arrange for repayment of the borrowed amount and when the petitioner has chosen to deny his liability itself, the respondent need not wait for the expiry of 15 days and the cause of action arises from the date on which the petitioner / accused failed to make the payment. In other words, it is contended that the payee need not wait for the completion of 15 days period to lapse when the petitioner / accused did not make any payment and when he denied his liability itself. 6.1. Learned counsel for the respondent relied upon a decision in the case of Rajendran vs. Danapal Pillai (Crl.RC.No.662 of 1994) decided on 17.06.1999; 15. In my opinion, the cause of action arises from the date of the denial made even on the receipt of the notice issued under proviso (b) to Section 138 of the Negotiable Instruments Act, because the period of fifteen days is given after receipt of the statutory notice only for the purpose of making the payment, but not for denying the payment and to make the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t accused was served with statutory notice only on 29.3.2005 and the 15 days time to settle the amount as contemplated under Section 138(c) of the Negotiable Instruments Act, expires only on 13.4.2005 . 16.The ratio in the said judgment is found at paragraph 17, which is extracted hereunder: 17. Here in this case, the complaint was preferred three days short of the time to be availed by the accused to settle the dues, but the learned District Munsif-cum-Judicial Magistrate, Mettupalayam, has taken cognizance of the complaint presented by the complainant well after the expiry of the 15 days time granted under the statutory notice to settle the amount due to the Page 673 complainant. So it is found that the cognizance of the complaint has been taken only after the expiry of 15 days time granted to the drawer. 17.This judgment relied upon by the petitioner is also distinguishable on facts since in the said judgment, the learned Magistrate had taken cognizance after expiry of 15 days. However, in the present case, the learned Magistrate has taken cognizance of the complaint, within 15 days. Therefore, the ratio in the above said judgment will also be of no use while dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless - ...... (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 receipt of the said notice. Section 142(b) also needs extraction for the purpose of considering his submission and it reads as follows : 142. Cognizance of offences. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),.....(b) such complaint is made within one month of the date on which the cause of action ari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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