I.S.P. Soutions India (P) Ltd. and Others vs Kuppuraj

M. Jeyapaul, J.—The petition is filed seeking quashment of the criminal proceedings in C.C.No.156 of 2005 on the file of the learned

District Munsif-cum-Judicial Magistrate, Mettupalayam.

The petitioners are the accused in the proceedings initiated by the respondent/complainant herein for the offence u/s 138 of the Negotiable

Instruments Act.

The respondent/complainant has lodged a complaint alleging that the first petitioner/first accused-Company borrowed a sum of Rs. 2,15,000/-

for the development of the said Company and the third and fourth petitioners/third and fourth accused, being the Directors of the said Company,

issued a cheque dated 10.12.2004 in favour of the respondent/complainant for a sum of Rs. 2,15,000/- to discharge the said loan. The second

petitioner/second accused, who is the Managing Director and the third petitioner and fourth petitioners/third and fourth accused, who are the

Directors of the said Company, are incharge of the conduct of the business of the company, it has been alleged.

It is further submitted in the complaint that the cheque, when presented on 17.3.2005 for collection, was returned dishonoured for the reason

Funds Insufficient"" on 19.3.2005. Statutory notice was issued on 28.3.2005, calling upon the petitioners/accused to pay the cheque amount of Rs.

2,15,000/- within 15 days from the date of receipt of the legal notice. The accused failed to settle the amount, despite the fact that the first accused

received the notice on 29.3.2005 and the accused 2 and 3 returned it unclaimed. The accused sent a false reply through their counsel on

11.4.2005.

There is a serious allegation in the complaint that the present complaint will have to be filed even before the expiry of 15 days time given in the

notice, as there was an attempt by the police to grab the original cheque from the possession of the complainant on 8.4.2005 based on a false

complaint given with the influence of the third accused who is the son of a Superintendent of Police.

The petitioners/accused have alleged in the quash petition that the first accused was served with statutory notice only on 29.3.2005 and the 15

days time to settle the amount as contemplated u/s 138(c) of the Negotiable Instruments Act, expires only on 13.4.2005.

The further contention is that the complaint preferred on 11.4.2005 even before the expiry of the 15 days time is not sustainable. Secondly, it is

alleged that the entire amount payable to the complainant was fully repaid by the accused. The last ground raised in the petition is that the

respondent/complainant misused one of the cheques and fabricated the amount mentioned therein.

Learned counsel for the accused would submit that the cause of action to file the complaint as per Section 138(c) of the Negotiable Instruments

Act would arise only on the expiry of 15 days time given thereunder for settling the amount under the cheque by the accused.

Learned counsel for the respondent would submit that it is now well settled that the complaint preferred before the expiry of 15 days time

granted for settlement of the dues by the accused is sustainable if the Judicial Magistrate takes cognizance of the complaint after the expiry of 15

days time granted to the accused to settle the dues.

As regards the plea of the accused that the amount due to the complainant was already settled and that one of the cheques was misused and

the amount mentioned therein was fabricated will have to be gone into by the trial Court during the course of trial. Those disputed facts cannot be

gone into by this Court invoking the inherent jurisdiction u/s 482 of the Code of Criminal Procedure.

The Hon''ble Supreme Court in Prem Chand Vijay Kumar v. Yashpal Singh 2005 SCC 1153 has observed that the complaint has to be filed

within one month from the date immediately following the day on which the period of 15 days from the date of receipt of the first notice by the

drawer expires.

The question that arose in the said case was whether the cause of action to file the complaint will arise immediately after the expiry of 15 days

from the date of receipt of the first notice by the drawer. In the said case, it appears that there had been a repeated dishonour on presentation of

the same cheque. The limitation starts following the day on which the period of 15 days from the date of receipt of the first notice expired and not

following the date on which the period of 15 days from the date of receipt of the second notice or subsequent notice by the drawer, it has been

ruled.

In a case in Narsingh Das Tapadia Vs. Goverdhan Das Partani and Another, where the Hon''ble Supreme Court dealt with a similar question

that has arisen in this case and held categorically as follows:-

Mere presentation of the complaint in the Court cannot be held to mean that its cognizance had been taken by the Magistrate. If the complaint is

found to be premature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not

necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the

offence committed.

It is relevant to refer to Section 138(c) which reads as follows:-

Section 138(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 the receipt of the said notice.

Reference to Section 142 of the Negotiable Instruments Act, which reads as follows, is also contextual at this juncture:-

Section 142 : Cognizance of offences---Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),---

(a) No Court shall take cognizance of any offence punishable u/s 138 except upon a complaint, in writing, made by the payee or, as the case may

be, the holder in due course of the cheque;

(b) Such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138;

(c) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable u/s 138.

Section 142 of the Negotiable Instruments Act adverts to taking cognisance of the offence punishable u/s 138 of the Negotiable Instruments

Act. Section 138(c) of the Negotiable Instruments Act declares that the dishonour of the cheque in question becomes an offence only when the

drawer of the cheque failed to respond positively within 15 days from the receipt of the statutory notice.

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 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.

Under the above circumstances, the Court finds that the complaint which was taken cognizance by the learned District Munsif-cum-Judicial

Magistrate, Mettupalayam is not hit by the above proviso. Further, the Hon''ble Supreme Court of India has also declared that the complaint which

was taken cognizance by the learned Judicial Magistrate after the expiry of 15 days time given to the drawer of the cheque is sustainable.

It is true that the complainant approached the Court even before the cause of action matured. The complaint should attain maturity at the

portals of the Court before the Court takes cognizance of the case. The incubation period at the corridors of the Court does not demature the

complaint.

It is germane to refer to the specific allegation made in the complaint with reference to the necessity to barge into the premises of the Court

with the dishonoured cheque in hand. It is not as if the complainant was not aware of the 15 days time given to the accused to amicably settle the

matter. Thwarting the alleged attempt made by the police to grab the cheque in dispute, the complainant had to take recourse under the protective

wings of the Court of the learned District Munsif-cum-Judicial Magistrate, Mettupalayam, even when the complaint was short of three days time to

attain its maturity. In such circumstances, the complainant has no other go except seeking protection of his rights even before the maturity of the

cause of action. At any rate, it is found that the criminal proceedings under Sections 138 and 142 of the Negotiable Instruments Act launched by

the respondent/complainant cannot be quashed for the aforesaid grounds.

In the result, the criminal original petition fails and it stands dismissed. Consequently, connected criminal miscellaneous petitions also stand

dismissed. The accused are at liberty to raise all these points before the trial Court.