Sunil Aggarwal vs Rajwanti

S.S. Nijjar, J.—This petition u/s 482, Criminal Procedure Code, read with Article 227 of the Constitution of India, has been filed with a

prayer for quashing the complaint dated 6th January, 1999 (Annexure P-9). the summoning order dated 9th March (Annexure P-IO) and further

proceedings pending in the Court of Sh. Ram Singh Chaudhary. Sub Divisional Magistrate. Gohana.

Respondent No.2 is a Company incorporated u/s 149(3) of the Companies Act 1956 on 15th April, 1997. Petitioners Nos. 1, 2 and 6 were

the first Directors of the Company. Petitioners Nos.4 and 5 are the subscribers of the Company. It is slated that the petitioner No. 1 resigned from

the Directorship of the Company on 11th February, 1998. Petitioner Nos.2,6 and 7 have also resigned. This Company floated various schemes as

provided under Articles of Association permissible under the law to promote the commercial activities. The Company had acquired land in

Sonepat District of Haryana and also in U.P. These lands were used for cultivation of eucalyptus trees. The respondents deposited a sum of Rs.

1.12.500/- with the Company on 1st October. 1997. Petitioner No. 1. the then Director of the Company, issued post-dated Cheque No.342356,

dated 1.10.1998 for a sum of Rs. 1, 12.500/-. On presentation of the cheque, the same was dishonored. Intimation of dishonor was given by the

respondents on 28th October. 1998. The present complaint has been filed on 6th January, 1999. Prior to the filing of the complaint. legal notice

was given on 5th November. 1998. This was received by the petitioner on 7th November, 1998. Therefore, the complaint could have been filed

till 22nd December. 1998. Mr. Bansal submits that these proceedings are liable to be quashed on the sole ground that the Magistrate could not

have taken cognizance of the, complaint as the same has been filed beyond the period of limitation u/s 142 of the Negotiable Instruments Act

(hereinafter referred to as ""the Act"")-

A perusal of Section 142 of the Act shows that no Court can cognizance of any offence under the Negotiable Instruments Act unless the

complaint is filed within one month of the date on which the cause of action arises under clause (c) of the proviso to. Section 138 of the Act The

cause of action arises on the expiry of 15 days of the date of receipt of the notice given u/s 138 of the Act. As noticed above, notice was given on

15th November, 1998 (5th November?) which was received on 7th November. 1998. Therefore, cause of action arose on 22nd of November,

1998. The complaint, if any ought to have been filed on or before 22nd December, 1998, The present complaint admittedly was filed on 6th

January, 1999. On that date the magistrate did not have the jurisdiction to take cognizance of the complaint. Therefore, prima facie it appears that

the proceedings have to be quashed on this short ground. In view of the fact that the complaint has been filed beyond the period of limitation, the

complaint cannot be permitted to proceed any further.

Mr. Bansal has also submitted that the present petitioners had resigned from Directorship at a time when the cheque was dishonored. Therefore,

further proceedings against them cannot continue. I am unable to accept the contention of the Learned Counsel. The liability u/s 138 of the Act

arises against a person who signs or issues the cheque which is subsequently dishonored. Mere averment to the effect that subsequently the

petitioners have resigned, would not be sufficient to quash the complaint or the summoning order. Veracity of the averment will depend on the

evidence produced at the trial.

Mr. S.R. Hooda, counsel appearing for respondent No.1 submitted that the complaint is not being prosecuted only u/s 138 of the Act. The

petitioners are being prosecuted for various offences under Sections 420, 467, 471, 470 read with Section 120B of the Indian Penal Code. A

perusal of the summoning order, however, shows that the complaint has been filed u/s 138 of the Negotiable Instruments Act, 1881, read with

Section 142 of the Act. The petitioners have also been summoned only u/s 138 of the Negotiable Instruments Act. The summoning order dated

9th March. 1999 has been placed on record today. It is submitted by Mr. Bansal that Annexure P-10 which is attached with the petition has been

wrongly attached in place of the actual summoning order. The summoning order Annexure P-10, is taken on record in substitution of the earlier

Annexure P-10. Since the complaint has been clearly filed beyond the period of limitation, the proceedings cannot be permitted to continue. The

petition is, therefore, allowed. The proceedings pending against the petitioners including Annexure P-I are hereby quashed qua the petitioners.

Respondent No. 1 is at liberty to file fresh complaint u/s 420,120B, 467,468,470 and 471, IPC, if so advised. No relief can be granted to

respondent No. 3 who is accused No. 9 in the complaint in the present proceedings. He is at liberty to take out appropriate proceedings. No

costs.