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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
U. DURGA PRASAD RAO, J.
Nemalipitta Vidya Sagar - Appellant
Versus
State of A.P. and Ors. - Respondents
Criminal Petition No. 1108 of 2018
Decided On : 29-10-2019
Negotiable Instruments Act, 1881 - Sections 138 and 142 - Cheque issued was dishonoured - Payment stopped by drawer - Complaint was filed beyond the statutory period of limitation - Should be noted that the petitioner averred several grounds in the petition but ultimately confined his argument to the limitation aspect - Consideration is whether the complaint was filed within the period of limitation - 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 - Held, Receipt of the notice Act must invariably be by the drawer of the cheque to whom it is given - Knowledge of the sender about the date of receipt of notice by the drawer is, therefore, very much material as regards accrual of the cause of action for making the complain - On such construction, cause of action for such complaint, so far as the complainant in this case is concerned, would accrue on the failure of the drawer to make payment within fifteen days from the date of knowledge of the complainant about the receipt of the notice by the drawer/accused - Such construction would not in any way be prejudicial to the accused - It would rather be beneficial to her as she would get longer time to make payment of the amount and thus avoid criminal liability for non-payment - Date of receipt of the said notice in proviso Act must be realistically understood as the date of knowledge of receipt of the said notice while computing the period of one month of the date on which cause of action arises in Act - That alone would be a just, purposive and realistic interpretation of the law - Any contra interpretation would be unjust and would result in frustration of the purpose of law - Petition dismissed.
ORDER :
U. Durga Prasad Rao, J.
1. In this petition the accused assails the cognizance order of the learned II Additional Chief Metropolitan Magistrate, Visakhapatnam in C.C. No. 518 of 2017 for the offences under Sections 138 and 142 of Negotiable Instruments Act, 1881 (for short, "N.I. Act") on the ground that the complaint was filed beyond the statutory period of limitation prescribed under Section 138 of N.I. Act and the trial Court took cognizance without affording prior notice to the petitioner. It should be noted that the petitioner averred several grounds in the petition but ultimately confined his argument to the limitation aspect.
2. As per complaint allegations in C.C. No. 518 of 2017, towards the principal and interest under promissory note dated 08.03.2014 and advance amount of lease agreement dated 12.09.2012, the petitioner/accused issued a cheque bearing No. 000117, dated 25.12.2015 for Rs. 9,00,000/- drawn on Bank of India, Salur Branch, Vizianagaram District and the complainant presented the cheque for collection in State Bank of India, Venkateswarametta Branch, Visakhapatnam on 17.03.2016 which was bounced back on 19.03.2016 with an endorsement "payment stopped by drawer". Hence, the complainant issued a statutory notice under Section 138 of N.I. Act to the accused on 16.04.2016. However, he did not receive postal acknowledgment, hence the Complainant lodged a complaint with postal authorities to intimate the status of the Registered Post. On 19.05.2016, the Postal authorities sent reply stating that the registered cover was delivered to the accused on 22.04.2016 through Pachipenta Post Office. Since the accused did not pay amount in spite of receiving the lawyer notice, the complainant filed the private complaint on the file of II Additional Chief Metropolitan Magistrate, Visakhapatnam on 15.06.2016.
3. Thus, according to the complainant, he came to know that his registered notice was received by the accused on 22.04.2016 only on 19.05.2016 and therefore from that date he waited for 15 days for the accused to pay the cheque amount and when he did not respond, the cause of action to file complaint commenced on 04.06.2016. In terms of Section 142 of N.I. Act, he filed the complaint within one month from 04.06.2016 i.e., on 15.06.2016. Hence, learned counsel for respondent/complainant Sri N. Siva Reddy, would contend that complaint petition was well within time and therefore the trial Court rightly took cognizance and registered the case.
4. Per contra, learned counsel for petitioner-accused Sri R. Siva Sai Swaroop, would argue that the complaint was filed beyond the period of limitation. According to him, admittedly on 19.05.2016 the postal authorities informed the complainant that the registered notice was received by the accused on 22.04.2016 itself. Therefore, the calculation of 45 days i.e., waiting period of 15 days for expecting payment of the cheque amount plus 30 days time for filing complaint under Section 142 of N.I. Act shall be reckoned from 22.04.2016 but not 19.05.2016. He would vehemently contend that if calculation of 45 days is commenced from 23.04.2016, the complaint can be said to be woefully time barred. Therefore, the complainant was obligated to file a delay condoning petition along with the complaint and the trial Court ought to have served notice on him to file his counter. Instead, the trial Court took the cognizance straight away and hence complaint is not maintainable.
5. He relied upon a judgment of this Court in Crl.P. No. 9990 of 2017 dated 10.12.2018 to contend that this Court on finding that the cognizance order was beyond the period of limitation, set aside the said cognizance order and remitted the matter to the trial Court to consider the limitation aspect afresh.
6. He also relied upon a decision reported in ECON Antri Limited v. Rom Industries Limited and others, 2014 (1) ALT (Crl.) 56 (SC) : 2013 (5) ABR 1277.
7. The point for consideration is whether the complaint was filed with
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