Goa Antibiotics and Pharmaceuticals Ltd. vs R.K. Chawla and Another

N.A. Britto, J.—Heard.

This is Complainant''s petition filed u/s 482 of the Code of Criminal Procedure, 1973, and is directed against the Judgment/Order dated 20-6-2007 of the learned Additional Session Judge, Panaji, by which the complaint filed by the Complainant has been dismissed on two counts.

The complaint has been dismissed firstly, because the statutory notice was not sent within fifteen days of the receipt of information from the Bank that the cheque was dishonoured, as required by Clause (b) of Section 138 of the Negotiable Instruments Act, 1881 (Act, for short). Secondly, it has been dismissed because earlier the Complainant had made a demand in writing by notice dated 25-11-1998. In fact, the learned Sessions Judge has held relying on Prem Chand Vijay Kumar Vs. Yashpal Singh and Another, that the cause of action having been arisen out of the said notice dated 12-11-1998 no complaint could have been entertained on a second cause of action.

This petition can be conveniently disposed off on the first count alone. As regards the first count, there is no dispute that Clause (b) of Section 138 of the Act required that demand for payment was to be made in writing within fifteen days of the receipt of information by the Complainant from the Bank regarding the return of cheque as unpaid. The period of fifteen days was made into thirty days by amendment to the said Clause w.e.f. 6-2-2003. The learned Additional Sessions Judge has come to the conclusion that the subject cheques were returned unpaid on 10-3-1999 and the limitation for the Complainant to send a notice u/s 138 (b) of the Act expired on 25-3-1999 but as the notices were dated 20-3-1999, and were dispatched only on 31-3-1999, there was non compliance with the statutory limitation u/s 138(b) of the Act and therefore has proceeded to dismiss the complaint.

Shri. J. P. D''Souza, learned Counsel appearing on behalf of the Complainant submits that the amendment to Clause (b) of Section 138 which came into effect on 6-2-2003 was retrospective in nature and therefore the Complainant was entitled to take benefit of the same. Shri D''Souza, learned Counsel has placed reliance on an unreported Judgment of this Court between the same parties in Criminal Miscellaneous Application No. 102 of 2004 dated 6-7-2005. Shri D''Souza, learned Counsel further submits that what would be relevant for the purpose of the amendment is the date on which the complaint was dismissed by the learned Additional Sessions Judge.

Shri S. Singbal, learned Counsel appearing on behalf of the Respondent/Accused, on the other hand, submits that the aforesaid Judgment dated 6-7-2005 has been stayed by the Apex Court, and moreover the issue is no longer res-Integra as it has been decided by the Apex Court in the case of Anil Kumar Goel Vs. Kishan Chand Kaura, .

I am entirely in agreement with the submission made by Shri. Singbal, learned Counsel. In the aforesaid Judgment, the Apex Court has held that the amendment brought about w.e.f. 6-2-2003 is prospective in nature and not retrospective as sought to be contended on behalf of the Complainant by learned Counsel Shri. D''Souza. Indeed, the Apex Court has also seated that when the complaint was filed on 28-11-1998 (in our case 22-4-1999) the Respondent could not have foreseen that in future any amendment providing for extending the period of limitation, on sufficient cause being shown would have been enacted.

In the light of the Judgment of the Apex Court referred to herein above, the dismissal of the complaint on the first count by the learned Additional Sessions Judge cannot be faulted and consequently this petition needs to be rejected.