9911796707
TMI Blog2008 (4) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 775 of 1997 out of which the CRR No. 2110 of 1998 has arisen the petitioner issued a cheque in favour of the opposite party for Rs. 1 lac on 08-11-1997 towards repayment of loan. In connection with CR No. 772 of 1997 pending in the court of the Judicial Magistrate, 2nd Court, Burdwan out of which the CRR No. 2111 of 1998 has arisen the petitioner issued a cheque on 11-11-1997 in favour of the opposite party for Rs. 3 lac towards repayment of the loan. All the cheques were bounced because of insufficiency of fund in the account of the petitioner. Then followed statutory notice under Section 138(b) of the N.I. Act. Repayments were not made in respect of the bounced cheques and consequently four separate petition of complaints were lodged. 3. In all the four cases statutory notice was served on 01-121997 and all the four complaints were filed on 15-12-1997. 4. The only question involved in the four revisional applications is whether the four petition of complaints were premature or not. Clause (c) of Section 138 of the N.I. Act provides that nothing contained in this Section shall apply unless: (c). The drawer of such cheques fails to make the payment of the said amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g date of the period of 15 days envisaged in Clause (c) of Section 138 of the Act. According to Mr. Chakraborty the starting date is the date of receipt of notice and once it starts the offence is completed on the failure of the drawer to make payment of the money within 15 days. It is submitted that object of the Act has to be appreciated and interpreted in its proper perspective and even payment of the entire amount during trial does not absolve the accused-drawer of the liability of offence, having regard to the decision in Rajnath Agarwal v. Amith J. Valia 2001CriLJ708 . It is submitted by Mr. Chakraborty that the object of the enactment has to be interpreted in the light of the decision in Dalmia Cement v. Galaxy Traders 2001CriLJ972 . Thus, according to Mr. Chakraborty cause of action arises once the notice is served and not on the expiry of 15 days. In this connection I have been taken to the decision in Sil Import, USA v. Exim Aides,Silk Exporter, Bangalore 1999CriLJ2276 . 6. Upon hearing the learned advocates for the parties the question is if the right to institute a complaint under Section 138 of the N.I. Act is said to have arisen the moment the drawer of the cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted the appellant to mail the contents. By the time the complainant received the intimation of the respondents, the statutory period of filing the complaint was about to expire. Believing the averments of the respondent's letter to be true the appellant presented the cheque again on 01-07-1998 to the drawee bank which was again dishonoured on 02-071998. Then followed statutory notice which was received by the payee on 27-07-1998 but no payment was made. According to the complainant the accused on 06-08-1998 sent a registered cover which contained some waste newspaper bits. As despite dishonour of the cheque and receipt of notice the amount was not paid the appellant filed the complaint on 09-09-1998 within the statutory period from the date of service of the second notice. The High Court quashed the complaint on the ground of limitation. The Hon'ble Supreme Court held that the respondents tried to blow hot and cold in the same breath, stating on the one hand that the notice of dishonour had not been received by them and on the other praying for dismissal of the complaint on the plea that the complaint was barred by time in view of the notice served by the appellant which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is completed right to lodge complaint does not arise. In Narsingh Das Tapadia v. Goverdhan Das Partani and Anr. 2000 C.Cr.LR (SC) 522 the exact situation arose. Their Lordships of the Supreme Court held that if the complaint is found to be premature it can await maturity or the Court can return to the complainant for filing later. A complaint can be filed prematurely but what is barred is taking cognizance of offence by the Magistrate before expiry of the statutory period of 15 days. Herein in the reported decision though the complaint was filed prematurely the learned Magistrate took cognizance of offence after expiry of the statutory period of 15 days and in that view of the matter their Lordships held that the complaint was in order. This decision is decisive on the point that if a complaint is filed prematurely and cognizance is taken prematurely then it is hit by Section 142(b) read with Section 138(c) of the N.I. Act. In Sarav Investment and Financial Consultants Pvt. Ltd. and Anr. v. Llyods Register of Shipping Indian Office Staff Provident Fund and Anr. JT 2007 (11) SC 580 the interpretation of the relevant provisions as above has been more explicit. In this reported decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
