TMI Blog2022 (11) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that there is sufficient cause shown by the complainant explaining the delay, the Trial Court ought to have exercised its jurisdiction to condone such delay. It will be apt to refer to law laid down by Apex Court in BIRENDRA PRASAD SAH VERSUS THE STATE OF BIHAR AND ORS. [ 2019 (5) TMI 1912 - SUPREME COURT ] wherein in somewhat similar circumstances, the Supreme Court held that the High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015. This Court has no hesitation in holding that even if first demand notice dated 15th of May, 2012 is taken to be the trigger point giving rise to cause of action and the complaint is held to be barred by time, the explanation given in the complaint itself constitutes sufficient cause for condoning the delay in instituting the complaint and the Courts below fell in error in dismissing the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility respondent issued cheque No. 304763 dated 29th of February, 2012 for an amount of Rs. 1,56,634/- drawn on Bank of India. When presented, the said cheque was returned vide memo dated 26th of March, 2012 with the remarks, exceeds arrangements . Petitioner claims that on instruction of the respondent the cheque was again presented by him. However, the same was again dishonoured vide memo dated 18th of April, 2012 with the remarks, payment stopped by the drawer . Complainant further claims that demand notice as contemplated under the statute was sent by registered post to the respondent on 15th of May, 2012. The same was returned unclaimed with the remarks, the recipient is out of station for indefinite period . Another notice was sent through e-mail on 2nd of June, 2012. After the respondent failed to respond to the demand raised by the complainant, present complaint Annexure P-1 was filed against the respondents for offence punishable under Section 138 of the N.I. Act, on 16th of July, 2012. At the stage of summoning, Ld. Trial Court dismissed the complaint vide following order dated 1st of August, 2012:- Today the case was fixed for consideration on the summoning poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a conclusion that cause of action cannot arise on any repeat dishonor of the same cheque. Cause of action in terms of Section 142 (b) of the Acts arises only once. For ready reference, the said provision is appended as below: (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 [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period]. 11. When the cause of action on service of the first notice through registered post on 15.5.2012 had arisen on the said date, complaint was to be filed on nonpayment of the cheque amount within stipulated time after service of the said legal notice. Operative portion of impugned order of the learned Trial Court with approval is appended as below: The cause of action arose on 15.5.2012, the second legal notice can not be taken into consideration for filing of complaint. So in the present case second legal notice cannot be considered and complaint is barred by first legal notice and no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 304114/ 13.04.12 91465 16.04.12 Exceeds Arrangement 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 4 304762/ 29.02.12 273825 02.05.12 Payment Stopped 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 5 303993/ 14.01.12 255619 02.05.12 Payment Stopped 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 6 304115/- 13.04.12 150187 16.04.12 Payment Stopped 15.05.12 02.06.12 16.07.12 01.08.12 28.09.12 7 304186/ 26.03.12 251392 02.05.12 Payment Stopped 15.05.12 02.06.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 8 [a term which may be extended to two years'], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, 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, 9 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Civil Procedure to which it generally bears relevance but has been universally understood to mean the bundle of facts which the plaintiff must prove in order to entitle him to succeed in the suit. (See State of Madras v. C.P. Agencies AIR 1960 SC 1309; Rajasthan High Court Advocates Association v. U.O.I. Ors. AIR 2001 SC 416 and Mohamed Khaleel Khan v. Mahaboob Ali Mia AIR 1949 PC 78). 19. Section 142 of the Negotiable Instruments Act is perhaps the only penal provision in a statute which uses the expression 'cause of action' in relation to the commission of an offence or the institution of a complaint for the prosecution of the offender. A careful reading of Sections 138 and 142, as noticed above, makes it abundantly clear that the cause of action to institute a complaint comprises the three different factual prerequisites for the institution of a complaint to which we have already referred in the earlier part of this order. None of these prerequisites is in itself sufficient to constitute a complete cause of action for an offence under Section 138. For instance if a cheque is not presented within a period of six months from the date on which it is drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfies all the three requirements of Section 138. 13. Thus, in order to maintain complaint under the provisions contained in Section 138 of the Act, the following ingredients must be satisfied:- (a) Cheque must have been presented to the bank within a period of three months from the date on which it is drawn; (b) The cheque must have returned unpaid; (c) The payee or the holder in due course of the cheque must make a demand for payment of the cheque amount within 30 days of the receipt of the information from the bank regarding return of the cheque unpaid; (d) Such demand must be made by giving a notice in writing; and (e) The drawer of such cheque should have failed to make payment of the cheque amount to the payee/the holder in due course of the cheque within 15 days of the receipt of the said notice. For Court to take cognizance of offence punishable under Section 138 of the N.I. Act: (a) The complaint be made by the payee or the holder in due course of the cheque in writing; (b) Such complaint should be made within one month of the date on which the cause of action to file the said complaint arises; (c) The cause of action to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. The second respondent does not as a matter of fact, admit that the legal notice dated 31 December 2015 was served on him. The appellant has in the complaint specifically narrated the circumstance that despite repeated requests to the postal department, no acknowledgment of the notice was furnished. It was in these circumstances that the appellant issued a second notice dated 26 February 2016. Cognizant as we are of the requirement specified in proviso (b) to Section 138, that the notice must be issued within thirty days of the receipt of the memo of dishonour, we have proceeded on the basis that it is the first notice dated 31 December 2015 which constitutes the cause of action for the complaint under Section 138. 10. The complaint was instituted on 11 May 2016. Under Section 142(1), a complaint has to be instituted within one month of the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The proviso however stipulates that cognizance of the complaint may be taken by the court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. Both in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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