Prem Chandra Sharma vs Anamica Traders & Anr.

G. P. Mathur, J.—The applicant Prem Chandra Sharma initially filed a petition under Section 482, Cr. P. C. for quashing of the complaint dated 1791990 and the summoning order dated 1111991 passed by the 2nd Addl. C. M. M., Kanpur Nagar. Subsequently by order dated 2951991 the applicant was permitted to convert the petition into a criminal revision. The applicant then converted the petition into a criminal revision under Section 397/401, Cr. P. C.

It is contended by the learned Counsel for the applicant that the complaint filed by M/s. Anamika Traders under Section 138 of the Negotiable Instruments Act, was barred by limitation. The complaint shows that the accused gave a cheque dated 1811990 to the complainant. The said cheque was deposited in bank on 871990 but was returned to the complainant by the bank on 1171990 on the ground that the requisite amount was not available in the account of the accused. The complainant then gave a registered notice on 2571990 which was served upon the accused applicant on 681990 asking him to pay the money within 15 days. However, as the accused did not deposit the amount the complainant filed the present complaint on 1791990.

It is contended by the learned Counsel for the applicant mat according to the version given in the complaint the notice was served upon the accused on 681990 and, therefore, the complaint should have been filed within one month. According to the learned Counsel the complaint filed on 1791990 was beyond time and the learned Magistrate erred in passing the summoning order on 1111991.

I have considered the submission made by learned Counsel for the applicant and have perused the record. The notice given by the complainant to the accused on 2571990 was served on the accused on 681990. However, after service of the said notice the accused was entitled to make payment within 15 days as laid down by Proviso (c) 10 Section 138. Trias if the accused had made the payment by 2181990 no offence would have been committed by him. The offence has been committed by the accused when he did not make the payment by 2181990. Therefore, the cause of action to file the complaint arose for the first time on 2281990. Subsection (b) of Section 142 provides that no Court shall take cognizance of an offence unless such complaint is made within one month of the date on which the cause of action arises under clause (c) to the Proviso to Section 138. ''Cause of action'' is a wellknown expression of civil law terms as follows :

Mulla in the Code of Civil Procedure has defined the

�The ''cause of action'' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court."

In other words it is bundle of facts which (sic) taken with the law applicable to them gives the plaintiffs a right to relief against the defendants. Proviso (c) to Section 138 of the Negotiable Instruments Act gives a period of 15 days to the person who has drawn the cheque to make the payment of the money to the payee from the date of the receipt of the notice. It is, therefore, obvious that no complaint can be filed during this period of 15 days. The cause of action for filing the complaint arises for the first time after the expiry of the period of 15 days from the date of the receipt of the notice. Therefore, for the purpose of subclause (b) of Section 142 the period of one month will commence after the expiry of the period of notice. Since in the present case the notice was served on 681990 the cause of action to file the complaint arose on 2281990. It is not disputed that the complaint against the accused was filed on 1791990, i. e. within the period of one month and thus it was within limitation. The summoning order passed by the learned Magistrate, therefore, cannot be said to be illegal or erroneous on this ground.

Learned Counsel for the applicant next contended that Prein Chandra Sharma, proprietor of Daya Brick Field, had sent a letter on 2831990 to M/s. Anamica Traders informing it that he had issued instructions to the Bank not to honour the cheque as per the settlement arrived at between the parties on 1531990 and, therefore, the cheque was wrongly presented to the Bank by the complainant and the accused had committed no offences. In support of this submission reliance was placed on two documents, Annexures 4 anu 5 which have been filed along with the affidavit which was filed in support of the original petition under Section 482, Cr. P. C. In this revision I am required to judge the legality or propriety of the summoning order dated 1111991 passed by the learned Magistrate. The documents on which the learned Counsel has placed reliance are not part of the record of the case before the learned Magistrate. At this stage it cannot be said whether the aforesaid letters were really sent by Prem Chandra Sharma or whether the aforesaid letters are genuine or not. The learned Magistrate has passed the summoning order on the basis of the statements under Sections 200 and 202, Cr. P. C. and the documents filed by the complainant which are on the record of the case. Therefore, it cannot be said that there is any illegality in the summoning order dated 1111991.

The revision lacks merits and is accordingly summarily dismissed. The learned Magistrate will now try the case on the basis of the evidence adduced before him by the parties, wholly uninfluenced by any observation made by me regarding merits of the case.

Revision dismissed.