Manas Karmakar vs Jayprakash Prasad

R.K. Bag, J.—The petitioner has challenged the order dated November 12, 2013 passed by learned Judicial Magistrate, 8th Court, Alipore in connection with A.C. 2082 of 2011, by which learned Magistrate rejected the prayer of discharge of the petitioner from the criminal proceeding under Section 138 of the Negotiable Instruments Act.

The backdrop of preferring the present revisional application is as follows :

The petitioner took accommodation loan of Rs.50,000/- from the opposite party/complainant in the year 2004. The petitioner issued cheque no.407925 dated February 15, 2011 drawn on the State Bank of India, New Market Branch, Calcutta � 700 013 for Rs.50,000/- in favour of the opposite party/complainant in discharge of liabilities. The said cheque was dishonoured on presentation by the complainant/opposite party in D.P.S. Road Branch of Allahabad Bank on February 18, 2011. On April 23, 2011 the complainant/opposite party again presented the said cheque before Allahabad Bank, D.P.S. Road Branch, Tollygunge and the same was dishonoured for insufficient funds on April 25, 2011. On July 23, 2011 the complainant/opposite party issued the demand notice, which was received by the petitioner on July 26, 2011. It is alleged that the complaint was filed by the opposite party/complainant before the court of learned Magistrate on August 9, 2011, though the offence under Section 138 of the Negotiable Instruments Act would have been committed only on August 10, 2011 when the period of 15 days from the date of receiving the notice by the petitioner would have lapsed. The petitioner appeared before the court of learned Magistrate in response to the summons issued by the court and filed an application on September 26, 2013 praying for discharge on the ground that the complaint is not maintainable in law. By order dated November 12, 2013 learned Magistrate did not discharge the present petitioner from the criminal proceeding, though learned Magistrate held that the complaint filed by the opposite party/complainant is premature.

Relying on the decision of the Supreme Court in "Yogendra Pratap Singh v. Savitri Pandey" reported in (2015) 1 C. Cr. L.R (SC) 241, learned counsel for the petitioner submits that the offence under Section 138 of the Negotiable Instruments Act is made out against the petitioner on August 10, 2011, i.e. after lapse of 15 days from the date of receiving notice by the petitioner on July 26, 2011. He further submits that the present complaint being premature cannot be allowed to continue, as continuation of such criminal proceeding will amount to an abuse of the process of the court.

None appears on behalf of the opposite party/complainant in spite of service of notice as reflected from the affidavit-of-service filed on behalf of the petitioner.

It is relevant to quote the provision of Section 138 of the Negotiable Instruments Act, which is as follows :

"138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account 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 a term which may be extended to two year, 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, 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.

Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."

On perusal of the above provision of law, it appears that the offence under Section 138 of the Negotiable Instruments Act is made out only when the drawer of the cheque has failed to make payment of the cheque amount within a period 15 days from the date of receiving notice calling upon him to make the payment of the cheque amount. In the instant case, the cheque of Rs.50,000/- issued by the petitioner in favour of the opposite party/complainant was dishonoured on the last occasion on July 11, 2011. The opposite party/complainant issued the demand notice on July 23, 2011, which was received by the petitioner on July 26, 2011. The petitioner is entitled to get 15 days� time for making payment of the cheque amount to the opposite party/complainant and failure on the part of the petitioner to make the payment within the stipulated period, will make him liable to criminal proceeding under Section 138 of the Negotiable Instruments Act. The period of 15 days in the instant case would have expired on August 10, 2011, whereas the complaint was filed by the opposite party/complainant before the court of learned Magistrate on August 9, 2011. The natural corollary of my above observation is that the complaint was filed by the opposite party/complaint before the court of learned Magistrate when the offence was not committed by the petitioner which is punishable under Section 138 of the Negotiable Instruments Act. Learned counsel for the petitioner has rightly pointed out that the complaint is premature.

In "Yogendra Pratap Singh v. Savitri Pandey" reported in (2015) 1 C. Cr. L.R. (SC) 241, the three Judges Bench of the Supreme Court has rightly pointed out in paragraph 37 that the offence under Section 138 of the Negotiable Instruments Act is not made out before expiry of the period of 15 days stipulated in clause (c) of the proviso to Section 138 of the said Act. It is relevant to quote the said paragraph 37 of the report, which is as follows:

"37. A complaint filed before expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the Court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142 (b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as described under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a Court is barred in law from taking cognizance of such complaint. It is not open to the Court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the N.I. Act, as noted in the judgment of this Court in Kusum Ingots & Alloys Ltd. (supra) and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act."

By following the proposition of law laid down by the Supreme Court in "Yogendra Pratap Singh v. Savitri Pandey" (supra) I would like to hold that the offence under Section 138 of the Negotiable Instruments Act was not made out against the present petitioner on the date on which learned Magistrate took cognizance. As a result, the said criminal proceeding cannot be allowed to continue to its logical conclusion. The criminal proceeding against the petitioner under Section 138 of the Negotiable Instruments Act is liable to be quashed by invoking my inherent power under Section 482 of the Code of Criminal Procedure.

Now, the question for consideration of the Court is whether the petitioner will be allowed to get immunity from the clutches of law in spite of dishonour of the cheque issued by him in favour of the opposite party/complainant in discharge of the liability. The answer to this question is clearly given by the three Judges Bench of the Supreme Court in paragraph 42 of "Yogendra Pratap Singh v. Savitri Pandey" (supra). By following the proposition of law laid down by the Supreme Court in the said Report I would like to hold that the opposite party/complainant is at liberty to file fresh complaint against the present petitioner for the offence under Section 138 of the Negotiable Instruments Act and the delay in filing the fresh complaint will be treated as condoned by the concerned learned Magistrate by invoking the proviso to clause (b) of Section 142 of the Negotiable Instruments Act.

In view of my above findings, the criminal proceeding being A.C. 2082 of 2011 pending before the court of learned Magistrate, 8th Court, Alipore is quashed. The opposite party/complainant is at liberty to file fresh complaint against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act and the delay in filing the fresh complaint must be treated as condoned by learned Magistrate under the proviso to clause (b) of Section 142 of the Negotiable Instruments Act.

Criminal revision is, thus, disposed of.

Let a copy of this order be sent down to the learned court below for favour of information and necessary action.