TMI Blog1999 (5) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... 488 OF 1999 - - - Dated:- 3-5-1999 - THOMAS, J. JUDGMENT: Leave granted. A fax message sent by the respondent for his own safeguard has now boomeranged. Neither can he disown sending the fax message nor can he own its full implication. Thus he is forked in a catch-22-situation. Such a situation arose in a criminal proceeding which respondent launched against appellant for the offence under Section 138 of the Negotiable Instruments Act (for short the Act). How the above situation is reached can be summarized thus: Respondent is a proprietary concern doing business in finished silk products by exporting them to foreign countries. Appellant is a company having its Headquarters in California (USA). Appellant has been placing orders with the respondent for exporting such silk materials. According to the respondent, appellant owed a sum of 72075 U.S. dollars (equivalent to more than 26 lakhs of rupees) towards the sale consideration of several consignments of materials despatched to the appellant on the orders placed. After much correspondence and negotiations appellant company issued some post dated cheques on State Bank of India (California ARTESIA Branch). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence, contended learned counsel. Section 142 of the Act reads thus: 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 under section 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 under Section 138. The language used in the above Section admits of no doubt that the magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date on which the cause of action arose. Completion of the offence is the immediate forerunner of rising of cause of action. In other words cause of action would arise soon after completion of the offence, and the period of limitation for filing the complaint would simultaneously start running. To circumvent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (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. The duty cast on the payee on receipt of information regarding the return of the cheque unpaid is mentioned in clause (b) of Section 138. Within 15 days he has to make a demand for payment. The mode of making such demand is also prescribed in the clause, that it should be by giving notice in writing to the drawer of the cheque. Nowhere it is said that such notice must be sent by registered post or that it should be despatched through a messenger. Chapter XVII of the Act, containing Sections 138 to 142, was inserted in the Act as per Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988. When the legislature contemplated that notice in writing should be given to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a position to count the period in order to ascertain the date when cause of action has arisen. The fallacy of the above reasoning is that it erases the starting date of the period of 15 days envisaged in clause . As per the said clause the starting date is the date of the receipt of the said notice. Once it starts, the offence is completed on the failure to pay the amount within 15 days therefrom. Cause of action would arise if the offence is committed. If a different interpretation is given the absolute interdict incorporated in Section 142 of the Act that, no court shall take cognizance of any offence unless the complaint is made within one month of the date on which the cause of action arises, would become otiose. In this context the decision of a two Judge-Bench in Sadanandan Bhadran vs. Madhavan Sunil Kumar [1998 (6) SCC 514] can be referred to. A payee did not file the complaint within 45 days of sending the notice after the cheque was bounced back, but he presented the cheque once again thereafter and issued another notice. When a new cause of action arose on the strength of the second presentation of the cheque a complaint was filed by the payee on the strength o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough a corrigendum because the dictum of the Full Bench in SKD Lakshmanan Fireworks Industries vs. Sivarama Krishnan has been disapproved by this Court in Sadanandan Bhadrans case). The upshot of the discussion is, on the date when the notice sent by Fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution thereafter, due to the clear interdict contained in Section 142 of the Act. In this case the complainant has admitted the fact that written notice was sent by fax. Appellant has admitted its receipt on the same date. (It must be remembered that respondent has no case that fax has not reached the appellant on the same date). The last day when the respondent could have filed the complaint was 26-7- 1996. But the complaint was filed only on 8-8-1996 So the court has no jurisdiction to take cognizance of the offence on the said complaint. In the result, we allow this appeal and set aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
