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IN THE HIGH COURT OF BOMBAY
S.P. Kurdukar M.F. Saldanha, JJ.
Rakesh Nemkumar Porwal.... Petitioner.
Versus
Narayan Dhondu Joglekar and another.... Respondents.
Criminal Writ Petition No. 561 of 1992, decided on 29-7-1992.
Advocates appeared :
V.R. Manohar with Mrs. Usha Dahanukar, for the petitioners.
Y.S. Jahagirdar with S.G. Godbole, B.R. Patil, A.P.P., for respondents.
Held: For this purpose, one needs to go back to the specific provisions of Section 142 of the Negotiable Instatements Act. This provision in terms debars the Court from taking cognizance of any offence punishable under Section 138 of the Act except in certain specified situations. Section - 138 defines as to when and under what circumstances an offence can be said to have been committed. In order to 1 move any possible ambiguity, Section 142(b) of the negotiable Instruments Act reiterates the position that the point of time when the cause of action has arise is to commence when the notice period of 15 days as prescribed in the proviso to Section 138 (c) has elapsed. Reading these provisos together, we have no hesitation in holding that no offence can be said to have been committed unless and until the period of 15 days as prescribed under sub-clause (c) of Section 138 has in fact elapsed. A court would, therefore, be barred in law from taking cognizance of a complaint in respect of such an offence, at any point of time prior to this. It is not permissible to advance a submission that a complaint can be resented earlier to a Magistrate and kept ring for an order of process at a later point of time because the Code is quite specific about the fact that it is at the point of time when a private complaint is presented to the Court that the Court takes cognizance of it. It is open to the Court to defer the subsequent process either to examine the complainant or to send the complaint for enquiry and report by the police or for that matter, if no case is made out, to dismiss the complaint. The point of time at which cognizance is taken however, is when the complaint is presented to the learned Magistrate and applying this test, there can be no dispute about the fact that on 9.8.1991, when the complaint was presented to the learned Magistrate, no offence can be said to have been committed and, therefore, no cognizance could have been taken by him. (Para 10)
(ii) Criminal Procedure Code, 1973- Section 482 - Proceedings under" No new material can be introduced by either party in support of their contentions before the High Court. (Para 8)
(iii) Negotiable Instruments Act 1881 - Section 138- Dishonour of cheque- Would dishonour of a cheque attract criminal consequences in the normal course? - (Yes, reasons for dishonour even if they be very valid should not and cannot be taken into account when such a complaint is filed)
Held: The wording and the endorsement from the Bank or the circumstances under which a cheque is returned are not the guiding criterion but the fact that on presentation of the cheque, the payment was not made. There could be a host of reasons for this but the bottom line of the situation is that the payment could not be made by the Banker and the mechanics of the reasons apart, the irresistible conclusion that had the funds been available, the payment would have been made leads back to the position that dishonour, therefore, implies insufficiency of funds. We are reinforced in this view by the direction of a cheque as appears in Section 6 of the Negotiable Instruments Act which defines it as a bill of exchange drawn on a specified banker. (para 25)
Reading these provisions with the statement of objects and reasons of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Embedment) Act, 1988 (66 of 1988) whereby Chapter 17 comprising of sections 138 to 142 were inserted with effect from 1.4.1989, there can be little doubt that section 138 was intended to be a provision to curb instances of dishonour. It will have to be presumed that the multifarious grounds on which a cheque would be dishonoured are common place and in not having made any exception for such situations, the legislative intent behind section 138 was that cases of dishonour of a cheque would constitute a criminal offence unless the payment was forth coming within the prescribed period. The reference to the term insufficiency of funds was Obviously a qualifying clause which only reiterates the basic principle that an order to the Bank conveyed through a cheque to make a prescribed payment would only fail in a situation where the Bank could not implement that directive for want of the requisite funds. The circumstances that may contribute to the situation would, therefore, be irrelevant. The presumption in Section 139 heavily supports this view. (Para 25)
(a) Whether it is open to a complainant to invoke the process of a Criminal Court alleging an offence under section 138 of the Negotiable Instruments Act at any point of time earlier to that as is prescribed in the section and whether this infirmity is at all curable or whether it is fatal to the prosecution?
(b) What is the correct manner in which the time-frame as is prescribed in sections 138 and 142 of the Negotiable Instruments Act is required to be computed?
(c) Whether it would be open to complainant, in the course of proceedings under section 482 of the Code of Criminal Procedure, to produce material before the High Court for purposes of effectively amending statements or the factual position or as has happened in the present case, the material date set out in the complaint or conversely, whether the record of the lower Court is sacrosanct and cannot be altered at this stage?
(d) In section 138 to be afforded restrictive application by confining it to the narrow category of cases where the rejection slip reads "insufficiency of funds" or was it prescribed as an antidote for the malignant trade practice of indiscriminately issuing cheques that are dishonoured without any compunction - in other - words dishonour of a cheque attract criminal consequences in the normal course?
2. The facts that are material for purposes of the decision of this petition are set out in brief. Admittedly, the petitioner before us, at the relevant time, was the Executive Director of a limited company doing business under the name and style of M/s. Porwal Pulp and Paper Mills Ltd. As appears from the record, respondent No. 1, who is the complainant before the trial Court, has made certain supplies to the mills and it is his case that 12 cheques, each one in the sum of Rs. 15,000/- were issued to him towards payment against the goods in question. That the supplies had taken place several months earlier is not in dispute and we are not immediately concerned with the exact dates or the nature of those transactions. The 12 cheques in question were presented to his bankers on the 21st of June, 1991. All the 12 cheques were returned by the complainants' bankers with the endorsement "refer to drawer". This was communicated to the complainant on 8-7-1991. The complainant thereupon addressed separate notices in respect of each cheque, all of which are dated 18-7-1991 and these notices were despatched to the accused under Registered Post with acknowledgment due. The complainant states that on 29-7-1991, the entire bunch of notices was delivered by the postal authorities to the accused. The date is of some significance because it is in relation to this date that the entire controversy has arised. We shall presently deal with those circumstances which we are setting out in the narrative. Thereafter, on 9-8-1991, the complainant approached the trial Court at Satara and he filed 12 separate complaints each in respect of one of the cheques. The complainant discloses that the offence alleged was one under section 138 of the Negotiable Insturments Act. The learned Magistrate, as the record indicates, on the same day took down the verification of the complainant an
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