Harsukhlal Laxmanbhai Vagodia vs State of Gujarat

A.K. Trivedi, J.—The above referred to both the matters are filed by the same petitioners against the same respondents and as such both the matters being cognate are heard together and are being disposed of by this common order.

K. J. Kakkad, learned advocate appears on behalf of the petitioners in both the matters while Y. N. Ravani learned advocate appears for respondent No. 2 in both the matters. Learned A.P.P. Mrs. B. R. Gajjar appears for respondent No. 1 in both the matters.

Rule. The learned advocates for the respective parties waive service of rule.

The petitioners have challenged the legality and propriety of the order passed by the learned Judicial Magistrate, Mansa, District Mehsana. That in the proceedings of Criminal Revision Application No. 10 of 1998 an impugned order is passed in the proceedings of Criminal Case No. 428 of 1995 while in the proceedings of Criminal Revision Application No. 11 of 1998, the impugned order is passed in the proceedings of Criminal Case No. 43 of 1996.

Respondent No. 2 of the respective matters has prosecuted the present petitioner by filing the above stated criminal proceedings u/s 138 of the Negotiable Instruments Act, 1881. That the learned Judicial Magistrate, Mansa, District Mehsana, has taken cognisance and issued summons to the petitioners as accused. That the petitioners moved application exhibit 56, dated December 5, 1997, in the proceedings of Criminal Case No. 428 of 1995 and application exhibit 42, dated December 5, 1997, in the proceedings of Criminal Case No. 43 of 1995. That the petitioners have contended in both the matters, vide the said applications that u/s 138(b) of the Negotiable Instruments Act, notice on receipt of information regarding dishonour of a cheque is required to be given within a stipulated period and it is a mandatory provision. That, in the instant case, i.e., Criminal Case No. 428 of 1995 the information was received on July 10, 1995, and the notice is issued on July 25, 1995. That calculating the days it cannot be said to have been issued within fifteen days. Similarly, in Criminal Case No. 43 of 1995, the information was received on December 5, 1995, and the notice was issued on December 20, 1995, and as such there is a delay in sending the notice, and hence, complaint against the petitioners as accused should be dismissed.

That the learned J.M.F.C. Mansa, District Mehsana heard both the applications in the above stated proceedings and vide impugned orders dated December 5, 1997, rejected the applications holding that there cannot be a dispute with mandatory provisions of law for issuing a notice of fifteen days on dishonour of a cheque before filing a complaint u/s 138. However, as per the facts in both the matters, the complainant has served the notice within the prescribed period of fifteen days and as such the applications are not tenable at law.

Learned advocate K. J. Kakkad has referred to and relied on the provisions of sections 138(b) and 138(c) of the Negotiable Instruments Act and has vehemently urged that the Legislature has made the provision mandatory by using specific language and as such non-compliance of mandatory provisions should render the proceedings void. That the learned J.M.F.C. has committed a serious error by not accepting the proposition of law canvassed at the bar and rejecting the complaint while passing the impugned order. Shri Kakkad has further submitted that issuance of notice before filing a complaint is a condition precedent. To support the said submission, Shri Kakkad has referred to and relied on the observations made in the matter reported, vide Rajiv Kumar v. State of U.P.[1991] C Lj 3010 (All); [1993] 78 Comp Cas 507. It is further submitted that the court cannot add at its wisdom in the legislative provisions particularly when mandatory provisions are made for compliance by the Legislature. To support the submissions Shri Kakkad has referred to and relied on the observations made in Richard Samson Sherrat Vs. State of Andhra Pradesh and Another, ; Rajaram Venkatesh and Others Vs. The State of Andhra Pradesh and Others, . Referring to observations made in the matter reported in Harbinder Singh Vs. Smt. Suman Rani, . Shri Kakkad has urged that demand by notice before filing complaint u/s 138 of the Negotiable Instruments Act is a mandatory provision. Furthermore, Shri Kakkad has also referred to and relied on the provisions of section 5 of the Criminal Procedure Code, 1973, and has urged that applicability of the provisions of other law is excluded by the said provisions in the Code of Criminal Procedure. That thereby provisions of section 473 of the Criminal Procedure Code have no application while computing the limitation for the duration of notice period as prescribed u/s 138(b) of the Negotiable Instruments Act. To support the said submission Shri Kakkad has referred to and relied on the observations made in the matter reported in ....... [1992] 2 Bank CLR 635.

Having given my anxious thought to the facts and circumstances apparent from the record in the context of submissions urged by K. J. Kakkad and various authorities cited at the Bar, in my opinion, the impugned order passed by the learned J.M.F.C. in the above stated both the matters does not require any interference as the said order is eminently just, proper and reasonable.

It may be noted that section 138 of the Negotiable Instruments Act is a Central Act and as such the provisions of the General Clauses Act, 1897, is applicable while construing the provisions of the said Act. That section 9 of the General Clauses Act, 1897, reads as under :

"9. Commencement and termination of time. - (i) If any (Central Act) or regulation made after the commencement of this Act, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the words ''from'', and, for the purpose of including the last in a series of days or any other period of time, to use the word ''to''."

That accordingly while computing the notice period as prescribed u/s 138(b) of the Negotiable Instruments Act the day on which the information of dishonour of cheque is received has to be excluded while calculating the limitation of fifteen days for the service of notice. That accordingly, the learned J.M.F.C. has held in both the matters that statutory notice served by the complainant on the present petitioners before filing the respective complaints was served within the prescribed period of fifteen days and as such the application moved on behalf of the petitioners to dismiss the complaint cannot be accepted.

On the basis of the above stated grounds, I hold that both the revision applications cannot be sustained and stand disposed of as rejected. The petitioner appears to have prolonged the proceedings of criminal trial by resorting to different proceedings on various technical aspects and as such I hold that the petitioners shall pay costs of Rs. 500 in each matter to respondent No. 2 and Rs. 500 for respondent No. 1 which shall be sent to Legal Aid Committee. Rule is discharged. Interim relief granted earlier stands vacated.

After the pronouncement of this order, learned advocate K. J. Kakkad has requested to stay the operation of this order for a period of six weeks so as to enable the petitioner to approach the higher forum. In my opinion such a request cannot be accepted in view of the fact that criminal complaint filed against the present petitioners in a trial court has remained stayed for a considerably long period on one or the other ground of filing the proceedings. Such proceedings ought to have been completed within a period of six months and on that consideration request made by the learned advocate K. J. Kakkad has to be rejected.