TMI Blog2008 (8) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... 19.10.2007 passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 330 of 2007. 3. The relationship between the parties hereto was that of a borrower and creditor. A financial loan of Rs. 1,70,000/- was obtained by the appellant in 1996 from the respondent No. 1, which according to him has been paid off. Two post dated cheques, one bearing No. 460157 dated 6.12.1996 for a sum of Rs. 26,900/- and the other bearing No. 460158 dated 28.09.2000 for a sum of Rs. 1,70,000/-, however, were handed over to him. 4. Appellant contends that the amount of loan was repaid in cash. Admittedly, the cheques were presented before the bank on 10.01.2001. They were returned to the respondent No. 1 by the bank alleging that no such account, in the name of the appellant was in operation. A legal notice dated 17.01.2001 was sent by speed post asking the appellant to pay the said amount of Rs. 1,70,000/- failing which legal action including criminal action would be taken against him. 5. A complaint petition alleging commission of an offence under Section 138 of the Act, however, was filed only on 20.04.2001. 6. Indisputably, the complaint petition was sought to be amended f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... close the date of actual service of notice, it cannot be said that the legal notice was served upon the accused immediately after issuance thereof. In any event, as the complaint petition disclosed commission of an offence on the part of the appellant under Section 420 of the Indian Penal Code, the High Court s judgment is unassailable. 10. Section 138 of the Act provides a penal provision. The object of the Parliament in brining the same in the statute book is well-known, viz., to create an atmosphere of faith and reliance in the banking system. 11. The Act was amended in the year 2002 whereby additional powers have been conferred upon the court to take cognizance even after expiry of the period of limitation by conferring on it a discretion to waive the period of one month. 12. Before embarking on the questions raised, we may notice that the proviso appended to Section 138 of the Act limits the applicability of the main provision stating: 138 - Dishonour of cheque for insufficiency, etc., of funds in the account *** *** *** Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saroj Kumar Poddar v. State (NCT of Delhi) and Another (2007) 3 SCC 693 and DCM Financial Services Ltd. v. J.N. Sareen and Another 2008 (8) SCALE 54] 15. Indisputably, therefore, unless the conditions precedent for taking cognizance of an offence under Section 138 of the Act are satisfied, the court will have no jurisdiction to pass an order in that behalf. 16. We will have to examine the contentions raised by the leaned counsel for the parties hereto keeping in view the aforementioned legal principles in mind. Before, however, we advert thereto, we may place on record that the averments made in the complaint petition in regard to service of notice are in the following terms: 8. I say that the said Bank of the Accused, returned / dishonoured Cheque No. 460158 dated 28.09.2000 of Rs. 1,70,000/- drawn on Bank of India, Maheshwari Udyan Branch, Mumbai, under Bank remark NO SUCH ACCOUNT WITH US . The said remark was given in handwriting by the Branch Manager of the Bank of India, Maheshwari Udyan Branch, Mumbai in its Bank Memo dated 10.01.2001, though in the said Bank Memo at Sr. No. 11, it is printed at 11(b) Account closed and at 11(c) no account. This Bank Memo was receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noured by the Bank of the accused with reason No such account with us . I say that the Accused failed and neglected to make payments as per my demand notice dated 17.01.2001. The Accused has failed and neglected to make good attempts for payment of his dishonoured cheques on receipt of my demand notice, within the stipulated period as provided under Section 138(c) of the N.I. Act, 1988, therefore, the Accused has committed an offence punishable under section 138 read with section 141 and section 142 of the N.I. Act 1881 (as amended) and Section 420 of the I.P.C. 18. The cause of action of filing the said complaint was stated in the following terms: 17. I say that the aforesaid cheque of the drawer, the Accused herein was returned by the Complainant s banker i.e. the Deccan Merchant Co-op. Bank Ltd. Ghatkopar (E) Branch, Mumbai 400 077, which is situated within the jurisdiction of this Hon ble Court and, therefore, this Hon ble Court is competent to take cognizances of this present complaint and try the same. The demand notice to the Accused was issued within the stipulated period and the present complaint has been filed within the prescribed period as provided under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de, on the sole ground that the complaint was filed two days after the expiry of limitation. In the present case, notice was sent under Section 138 of the Act on 4-1-1997, which was served on the accused on 10-1-1997, giving him 15 days time for making payment, which expired on 25-1-1997. Cause of action to file the complaint accrued on 26-1-1997, which day has to be excluded in computing the period of limitation, as required under Section 12(1) of the Limitation Act, 1963. Therefore, the limitation would be counted from 27-1-1997 and the complaint was filed on 26-2-1997, within a period of one month from that date, as such, the same was filed well within time. We find that the point is concluded by a judgment of this Court in Saketh India Ltd. v. India Securities Ltd. in which case taking into consideration the provisions of Section 12(1) of the Limitation Act, it was laid down that the day on which cause of action had accrued has to be excluded for reckoning the period of limitation for filing a complaint under Section 138 of the Act. In the present case, after excluding the day when cause of action accrued, the complaint was filed well within time; as such the High Court was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. A s observed in B haskaran case if the giving of notice in the context of Clause ( b ) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act. [Emphasis supplied] 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he instant case. The question is now covered by a judgment of this Court in Anil Kumar Goel v. Kishan Chand Kaura [2008 AIR SCW 295] holding: 8. All laws that affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations, unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous, effect will have to be given to the provision is question in accordance with its tenor. If the language is not clear then the court has to decide whether, in the light of the surrounding circumstances, retrospective effect should be given to it or not. (See: Punjab Tin Supply Co., Chandigarh etc. etc. v. Central Government and Ors., AIR 1984 SC 87). 9. There is nothing in the amendment made to Section 142(b) by the Act 55 of 2002 that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so. No case for proceeding against the respondent under Section 420 of the Indian Penal Code is therefore, made out. 23. Filling up of the blanks in a cheque by itself would not amount to forgery. Whereas in the complaint petition, allegations have been made that it was respondent Nos. 2 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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