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TMI Blog2022 (5) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the summoning order after non-bailable warrants were issued against the petitioner. This Court is of the view that the argument raised by the learned counsel for the petitioner to the effect that the complaint as instituted on 21.10.2020 was premature, is meritless and deserves to be rejected. Thus, the point as to whether the orders of the Hon ble Supreme Court passed in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [ 2022 (1) TMI 385 - SC ORDER ] are for the benefit of the complainant or for the benefit of the accused person is answered in favour of the complainant and against the petitioner/accused person. This Court is of the opinion that in case, this Court was to entertain the present petition, it would be doing injustice to the complainant, who has been vigilant of its rights and had instituted the complaint under Section 138 with respect to the dishonour of the cheque, in accordance with the provisions of the Act of 1881 - A perusal of the complaint would show that the ingredients of Section 138 of the Act of 1881 are, prima facie, made out. No argument has been raised challenging the said aspect. Petition dismissed. - CRM-M-17982-2022 - - - Dated:- 29- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in Suo Motu WP (C) No.3 of 2020 (Annexure P-4), the period from 15.03.2020 till 14.03.2021,was to be excluded in computing the period under proviso (b) and (c) of Section 138 of the Act of 1881 and any other law, which prescribed period(s) of limitation for instituting the proceedings. It is further contended that in the said order dated 08.03.2021, reference has been made to the order dated 23.03.2020 which was the first order passed by the Hon ble Supreme Court of India in Suo Motu WP (C) No. 3 of 2020 extending the period of limitation prescribed under the general law or special law, with effect from 15.03.2020 and it has also been noticed in the Order dated 08.3.2021 that the said Order dated 23.03.2020 was extended from time to time. 3. Learned counsel for the petitioner has further submitted that vide order dated 23.09.2021 (Annexure P-5), the period from 15.03.2020 till 02.10.2021, was ordered to be excluded while computing the period of limitation for any suit/appeal/application/proceeding which also included proceedings under Section 138 of the Act of 1881. He has also placed reliance upon order dated 10.01.2022 (Annexure P-6), vide which, the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Learned Counsel for the petitioner has stated that the said orders are all the Orders passed in Suo Motu WP (C) No.3 of 2020 prior to the order dated 08.03.2021. It is submitted that the Order dated 08.03.2021 and the orders passed subsequent thereto, have already been annexed with the present petition. 7. The chronological list of events leading to the filing of the present petition under Section 482 have been enumerated hereibelow:- i) 23.03.2020 :- Order passed by the Hon ble Supreme Court of India in Suo Motu WP(C) no.3 of 2020 (reproduced hereinafter) directing that the period of limitation for filing petitions/applications/suits etc. shall stand extended with effect from 15.03.2020. ii) 06.05.2020 :- Further Order passed by the Hon ble Supreme Court on an application seeking appropriate direction qua initiation of proceedings under Section 138 of the Act of 1881, vide which benefit of exclusion of limitation was granted with respect to the proceedings to be initiated under the Negotiable Instruments Act.(The said order is reproduced hereinafter.) iii) 10.07.2020 :- Order passed by the Hon ble Supreme Court in the abovesaid proceedings in which, one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order as a whole, would clearly show that the same has been passed in order to give benefit to the persons who have to institute a case/complaint, by extending the period of limitation for filing of the said case. Even in the said order there is no embargo to file a complaint under Section 138 of the Act of 1881. xii) 16.04.2021 :-The Hon ble Supreme Court of India had in another Suo Motu proceedings i.e., Suo Motu Writ Petition (Crl) No. 2 of 2020 considered the expeditious trial of cases under Section 138 of the Act of 1881 and a5-Judges Bench, while passing the Order dated 16.04.2021, disposing of the said matter, had considered the delay in the disposal of the cases under Section 138 and had passed several directions (Order reproduced hereinafter). xiii) 23.09.2021 (P-5 Pg 27)/ 10.01.2022 (P-6 Pg 33):- Further orders passed by the Hon ble SC in SMW (c) no. 3 of 2020. xiv) 22.04.2022:- present petition for quashing of complaint and summoning order drafted and subsequently filed after a delay of 1 year and 3 months from the passing of the summoning order, without the petitioner first appearing before the trial Court for joining the proceedings under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks. A perusal of the abovesaid order would show that the Hon'ble Supreme Court had considered the fact that country was facing a challenge on account of COVID-19 virus and as a result of which, litigants across the country were facing difficulty in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiable Instruments Act 1881 shall be extended with effect from 15.03.2020 till further orders to be passed by this Court in the present proceedings. In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown. In view of the above, the instant interlocutory application is disposed of. IA No.48375/2020 CLARIFICATION/DIRECTION AND IA No.48511/2020 CLARIFICATION/DIRECTION AND IA No.48461/2020 CLARIFICATION/DIRECTION AND IA No.48374/2020 - INTERVENTION APPLICATION AND IA No.48416/2020 - INTERVENTION APPLICATION AND IA No.48408/2020 - INTERVENTION APPLICATION Issue notice. Waive service on behalf of the respondent Union of India since Mr. K. K. Venugopal, learned Attorney General for India and Mr. Tushar Mehta, learned Solicitor General, appear on its behalf. Let notice be issued to other respondents. (CHARANJEET KAUR) AR-CUM-PS (SANJAY KUMAR-II AR-CUM-PS (INDU KUMARI POKHRIYAL) ASSISTANT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply for extension of time limit for passing arbitral award under Section 29A of the said Act. Similarly, Section 23(4) of the Arbitration and Conciliation Act, 1996 provides for a time period of 6 months for the completion of the statement of claim and defence. We, accordingly, direct that the aforesaid orders shall also apply for extension of the time limit prescribed under Section 23(4) of the said Act. The application is disposed of accordingly. Pre-Institution Mediation and Settlement under Section 12A of the Commercial Courts Act, 2015. Under Section 12A of the Commercial Courts Act, 2015, time is prescribed for completing the process of compulsory prelitigation, mediation and settlement. The said time is also liable to be extended. We, accordingly, direct that the said time shall stand extended from the time when the lockdown is lifted plus 45 days thereafter. That is to say that if the above period, i.e. the period of lockdown plus 45 days has expired, no further period shall be liable to be excluded. I.A. No. 48461/2020- Service of all notices, summons and exchange of pleadings Service of notices, summons and exchange of pleadings/documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Reserve Bank of India nor any such argument has been raised before this Court. Thus, a person who had a cheque in his favour, the validity of which is for a limited period, was required to present the same within the aforesaid period, as, in case, he did not present it to the concerned bank within the said period, then, there could be a possibility of his cheque becoming invalid. Thus, no fault could be found with the complainant in the present case who had chosen to present the cheque within its validity period and after the dishonour of the cheque on account of funds insufficient/dormant account vide return memo date 17.09.2020, issued a legal notice dated 29.09.2020 and after the petitioner had failed to make the payment of the cheque amount within a period of fifteen days from the receipt of the legal notice, instituted the complaint under section 138, on 21.10.2020. The complainant was vigilant about its rights and cannot be put to a disadvantage for its promptness. Even the order dated 21.01.2021 passed by Judicial Magistrate 1st Class, Chandigarh, summoning the petitioner, after considering that the offence under Section 138 was prima facie made out, cannot be sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 138 of N.I. Act 1881 . Mr. Sidharth Luthra, learned Senior Counsel was appointed as Amicus Curiae and Mr. K. Parameshwar, learned Counsel was requested to assist him. Notices were issued to the Union of India, Registrar Generals of the High Courts, Director Generals of Police of the States and Union Territories, Member Secretary of the National Legal Services Authority, Reserve Bank of India and Indian Banks Association, Mumbai as the representative of banking institutions. Xxx xxx xxx xxx 24. The upshot of the above discussion leads us to the following conclusions: 1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial. 2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court. 3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AGESWARA RAO ] ........................J. [B. R. GAVAI ] ............................J. [ A. S. BOPANNA ] ....................................J. [ S. RAVINDRA BHAT ] The present petitioner apparently only wants to delay the final adjudication of the proceedings under Section 138 of the Act of 1881, as neither the petitioner has raised any ground to the effect that the cheque in question was not issued by the petitioner nor is the petitioner ready to honour the cheque even now and even in case, the sole argument raised by the learned counsel for the petitioner is accepted then also, at best, the present proceedings would be set aside and the complainant would be given the liberty to file a fresh complaint and it is not that the petitioner would be absolved of his liability under Section 138 of the Act of 1881. Moreover, the present petition has been filed after a delay of 1 year and 3 months from the date of the summoning order after non-bailable warrants were issued against the petitioner. 14. The Hon ble Supreme Court in the case titled as Sicagen India Limited vs. Mahindra Vadineni and Ors reported as 2019 (4) SCC 271 , has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould carry out its object and reject that which renders the exercise of its power invalid 33. Applying the above rule of interpretation and the provisions of Section 138, we have no hesitation in holding that a prosecution based on a second or successive default in payment of the cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by statutory notice and a failure to pay had not been launched. If the entire purpose underlying Section 138 of the Negotiable Instruments Act is to compel the drawers to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or for any other similar reason. There is in our opinion no real or qualitative difference between a case where default is committed and prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object of the legislation has to be borne in mind. Xxx xxx 6. As noted hereinbefore, Section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so. Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. Xxx xxx Xxx xxx 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings in paragraph 3, makes it clear that the same is only for the above purpose and cannot, in the understanding of this Court, be construed to mean that the same would enlarge the time granted to the accused person to make the payment of the cheque amount. iv) The orders passed by the Hon ble Supreme Court do not restrain the complainant or any person from instituting the proceedings during the period of the pandemic. 17. With respect to the judgment of the Hon'ble Supreme Court in Yogendra Pratap Singh's case ( Supra ), which has been relied upon by the learned counsel for the petitioner, it would be relevant to note that the said case was a case in which, the complaint under Section 138 had been filed prior to the expiry of 15 days from the service of legal notice and was thus, held to be premature. In the present case, complaint dated 21.10.2020 has been filed after the expiry of 15 days from the date of service of the notice and the said fact has not been challenged or disputed during the course of arguments before this Court and thus, the present complaint cannot be stated to be premature. Moreover, even after taking into consideration the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ummoning order, the petitioner has chosen to file the present petition without appearing before the trial court. iii) None of the orders passed by the Hon ble Supreme Court from 23.03.2020 till 10.01.2022, put any embargo upon the complainant to institute the complaint under Section 138 of the Act of 1881. iv) The said orders of the Hon ble Supreme Court are for the benefit of the complainant who could not institute the complaint under Section 138 on account of the COVID-19 pandemic and cannot be construed to the disadvantage of the litigants who in spite of the pandemic, were vigilant to institute their complaints in accordance with the provisions of the Act of 1881. v) A perusal of the order of the Hon ble Supreme Court dated 10.07.2020, would show that the argument raised therein, with respect to granting extension qua the period of validity of the cheque, had been rejected, thus, necessarily requiring the holder of a cheque to present the cheque during the period of its validity, which could be elapsing during the pandemic. vi) In the present case, the cheque in question has been issued on 16.09.2020 during the period of the pandemic and thus, it would not l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h ( supra ) relied upon by the learned counsel for the petitioner). Moreover, the present petition has been filed after a delay of 1 year and 3 months from the date of the summoning order after non-bailable warrants were issued against the petitioner. xi) Even after 28.02.2022, a period of more than two months has elapsed and on a pointed query by this Court as to whether the petitioner was now ready to honour the cheque dated 16.09.2020, the learned counsel for the petitioner has answered in the negative. xii) The Order of Summoning dated 21.01.2021 passed by the JMIC, Chandigarh, as per this Court, does not deserve to be set aside solely on the ground that cognizance has been taken by the Judicial Magistrate 1st class, Chandigarh during difficult times. 20. Accordingly, the present petition is dismissed. 21. The observations made in the present case are only for the purpose of adjudicating the present petition under Section 482 of Cr.P.C., in which, challenge is to the complaint filed under Section 138 of the Act of 1881 and the summoning order and in order to answer the argument raised by the learned counsel for the petitioner and should not be construed as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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