Nimesh Shukla vs Vikas Kumar

T.P. Sharma, J.—By this petition u/s 482 of the Code of Criminal Procedure. 1973 (for short ''Code''), the petitioner has prayed for quashment of criminal proceeding pending in the Court of Judicial Magistrate First Class, Bilaspur, in Criminal Complaint Case No. 922/2010, whereby the trial Court has taken the cognizance for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the Act'') on the basis of complaint filed on behalf of the respondent. As per undisputed facts of the case, the petitioner has issued cheque in favour of the respondent, which was presented for in cashment before the bank, same was dishonored. On 5.8.2009 notice u/s 138 of the Act was given to the petitioner, which was returned unserved with an endorsement that the petitioner is not residing in the given address. Again cheque was presented for incashment, which was again dishonoured on 14.9.2009 on the ground of difference in signature. Again notice u/s 138 of the Act was issued upon the petitioner which he has received but has not replied the same. Thereafter complaint u/s 138 of the Act and Section 420 of the IPC was filed. The trial Court has taken the cognizance against the petitioner for the offence liable u/s 138 of the Act. Objection relating to maintainability of the complaint was filed by the petitioner. Same has been dismissed vide order dated 4.11.2011.

I have heard learned counsel for the parties, perused the copy of the complaint, copy of objection filed on behalf of the petitioner relating to maintainability of the complaint and other documents.

Learned counsel for the petitioner vehemently argued that after dishonored of the cheque and issuance of first notice the respondent was under obligation to file complaint within forty-five (45) days of service of notice but the respondent has failed to file the complaint within the limitation after second notice, which was time-barred, therefore, continuance of such criminal proceeding before the trial Court would be abuse of process of the Court.

Learned counsel for the petitioner placed reliance in the matter of M/s Indo Automobiles v. M/s Jaidurga Enterprises & others 2009 C.G.L.J. 297 (SC) in which the Supreme Court has held that once notice issued on correct address, it must be presumed that the service has been made effective. Learned counsel further placed reliance in the matter of Sadanandan Bhadran Vs. Madhavan Sunil Kumar, in which the Supreme Court has held that cause of action to file complaint of non-payment despite issue of the notice arises once and not after repeated dishonor or representation. Learned counsel also placed reliance in the matter of Tameeshwar Vaishnav Vs. Ramvishal Gupta, in which the Supreme Court has held that notice issued on correct address be presumed that the service has been made effective.

On the other hand, learned counsel for the respondent opposed the petition and argued that in the present case first notice issued to the petitioner was not served upon him on the ground that he is not residing in the given address, thereafter second cheque was presented. On second time when cheque was dishonored, the respondent has issued second notice which has been served upon the petitioner. Complaint u/s 138 of the Act for the offence punishable u/s 138 of the Act has been filed after receipt of notice within the stipulated time, therefore complaint is not barred by limitation.

Learned counsel placed reliance in the matter of S.L. Construction and Another Vs. Alapati Srinivasa Rao and Another, in which the Supreme Court has held that in case previous two notices issued after dishonor of cheque received unserved and withdrawn and thereafter cheque was presented 3rd time and after dishonor of cheque 3rd notice was issued and served upon the drawer and in case he fails to pay the amount, then complaint may file within the imitation from 3rd notice.

In the present case, undisputedly present complaint has been filed within the limitation from second notice. As per para 5 of the complaint cheque was dishonored on 17.8.2009 and demand notice has been issued to the petitioner in his address mentioned in the agreement which received unserved on 18.8 2009 with an endorsement that addressee is not residing in the given address. Thereafter again cheque was presented for payment, same was dishonored. After receiving the dishonor cheque on 14.9.2009 the respondent has issued notice to the petitioner on 22.9.2009, which was served upon the petitioner but the petitioner has failed to pay the dues within fifteen days of service of notice. The present complaint has been filed within thirty days from issuance of notice i.e. on 12.10.2009, which was within the limitation from the issuance of second notice.

While dealing with the question of cause of action the Supreme Court in the matter of Tameeshwar Vaishnav (supra) has considered the earlier decision given in S.L. Constructions (supra) and observed in para 16 as follows:

On careful scrutiny of the decision in S.L. Constructions case, it would appear that the facts on the basis of which the said decision was rendered, were different from a case of mere presentation and dishonour of the cheque after issuance of notice under the proviso to Section 138 of the Act. While the decision in Sadanandan Bhadran case, clearly spells out that a cheque may be presented several times within the period of its validity, the cause of action for a complaint u/s 138 of the Act arises but once, with the issuance of notice after dishonour of the cheque and the receipt thereof by the drawer. The same view has been reiterated in Prem Chand Vijay Kumar Vs. Yashpal Singh and Another, case. The only distinguishing feature of the decision in S.L. Constructions case is that of the three notices issued, the first two never reached the addressee it is only after the third notice was received that the cause of action arose for filing the complaint. In effect the cause of action for filing the complaint in the said case did not arise with the issuance of the first two notices since the same were never received by the addressee.

The Supreme Court has distinguished the case of S.L. Constructions and held that cause of action arises after receipt of notice which is 3rd notice, therefore, the complaint was within the limitation.

Clause (c) of Section 138 of the Act reads as under:

(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.

As per clause (c) of Section 138 of the Act, drawer of the cheque is required to make the payment of the said amount of money within fifteen days of the receipt of said notice.

In the light of the law propounded by the Supreme Court and clause (c) of Section 138 of the Act, it is clear that cheque may be presented for payment within six months when it becomes due and notice of payment may be issued more than one time, but cause of action for filing complaint will arise after the receipt of notice.

In the present case, first notice has been returned unserved. Thereafter, second notice was issued and after receipt of such notice when the petitioner failed to pay the dues then the respondent has filed complaint for the offence punishable u/s 138 of the Act within the limitation from the service of second notice. Complaint foiled within the Limitation from the service of notice issued second time in the present case is maintainable under the law.

By dismissing the application filed by the petitioner, the trial Court has committed any illegality warranting interference in exercise of extraordinary inherent jurisdiction. Consequently, the petition is liable to be dismissed and is hereby dismissed.