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2005(1) Bankmann 271
KERALA HIGH COURT
J.B. Koshy and K.P. Balchandran, JJ.
Krishnankutty Nair — Appellant
versus
Ashokan — Respondent
Crl. R.P. No. 8 of 1996
Decided on 20-12-2004
For the Petitioner:M. Balagovindan, D. Kishore & Biju Kuriakose, Advocates.
For the Respondent: S. Rajeev & Public Prosecutor (Noorji Naushad).
IMPORTANT POINT
The period of one month for filing the complaint under Section 142(b) of Negotiable Instruments Act has to be reckoned from the date immediately following the date on which the period of 15 days from the date of receipt of the notice by the drawer expired.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 142(b)—Time limit for filing complaint under Section 138—One month from date of arising of cause of action—Month means British Calendar Month—Conflict in decisions—1999 KLT 207 approved and 1995(1) KLT 248 and 1992(2) KLJ 1051 overruled.
Held: The above mentioned decisions were considered by another Single Judge of this Court in Jossy Kondody v. Chacko Thomas, 1999(3) KLT 207, and held that the period of one month for filing the complaint has to be reckoned from the date immediately following the date on which the period of 15 days from the date of receipt of the notice by the drawer expired. We agree with the above view. In the above circumstances, the decisions of the learned Single Judge of this Court in the case of Poornashree Agencies (supra) and Adril D’Couth’s case (supra) are overruled.
As far as the facts of this case are concerned, the revision petitioner issued Ext. P. 1 cheque dated 1.4.1993 in favour of the first respondent. When Ext. P1 cheque was presented to the bank for encashment on 5.4.1993, it was dishonoured on the same day due to insufficiency of funds in the account of the revision petitioner. On 19.4.1993, the first respondent sent a lawyer’s notice to the revision petitioner demanding repayment of the amount covered by the cheque. The said notice was received by the revision petitioner on 20.4.1993. As the amount was not repaid within 15 days of receipt of the notice, the first respondent filed a complaint on 5.6.1993 and the trial court took cognizance of the complaint and found that the revision petitioner is guilty under Section 138 of the Negotiable Instruments Act. In appeal, conviction was affirmed, but sentence was modified. The only question raised and argued in the Revision Petition is regarding the question of limitation. Hence, we are considering only that question in this Revision Petition. Here, the written notice sent regarding dishonour was received by the revision petitioner on 20.4.1993. Therefore, 15 days period will expire on 5.5.1993 and cause of action arises on 6.5.1993. Therefore, under Section 142(b) was explained by the Supreme Court in the case of Saketh India Ltd. (supra), the complaint should be filed on or before 6.6.1993. Here, the complaint was filed on 5.8.1993, within time as rightly held by the Courts below. Contention of the revision petitioner that complaint was filed beyond the time limit prescribed under the Act is therefore untenable.
Hence the Crl. R.P. is dismissed. (Paras 6, 7 & 8)
J.B. Koshy, J.—What is the time limit for filing a complaint under Section 138 of the Negotiable Instruments Act is the short issue considered in this Order. The learned Single Judge referred the matter to Division Bench noticing that decisions of this Court in M/s. Poornashree Agencies v. M/s. Universal Enterprises1 and Adril D’Couth v. Premier Auto Electric Ltd.2, are contrary to the observations of the Supreme Court in Saketh India Ltd. v. India Securities Ltd.3 Before going into the disputed question, first we will refer to the relevant sections. Section 138 of the Negotiable Instruments Act reads 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 years), or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing con-tained 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 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 pur-poses of this section, “debt or other liability” means a legally enforceable to debt or other liability.”
Section 142 read as follows:
“142.Cognizance of offence:—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
(a)no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(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 cog-nizance 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;)
(c)no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138).”
2. Under Section 138 of the Negotiable Instruments Act, when any cheque drawn by a person is returned by the bank unpaid for want of funds, such person shall be deemed to have committed an offence, provided conditions mentioned in clauses (a), (b) and (c) are satisfied. Clause (a) specifies that the cheque should be presented within six months from the date on which it is drawn and clause (b) states that the payee should make 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 dishonour of the cheque and under clause (c) if the drawer of such cheque fails to make the payment of the said amount of money to the payee within fifteen days of th
