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2008 N.C.C. 801
SUPREME COURT OF INDIA
Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Cyriac Joseph
Criminal Appeal No. 1190 of 2008
SUBODH S. SALASKAR – Appellant
Versus
JAYPRAKASH M. SHAH & ANR. – Respondents
Decided on : 01.08.2008
(Paras 5, 7, 8, 11, 13, 24, 26)
(B) Negotiable Instruments Act, 1881, Sec. 138 — An offence punishable U/s 138 of the Act must demonstrate ingredients of — Indisputably, therefore, unless the conditions precedent for taking cognizance of an offence of the Act are satisfied — The court will have no jurisdiction to pass an order in that behalf. (Paras 14, 15)
(C) General Clauses Act, 1897, Sec. 27 — In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfillment of the conditions laid down therein. (Para 21)
(D) Code of Civil Procedure, 1908, Or. V, Rule 9(5) — Presumption of service of Summons — Summons is presumed to be served if it does not come back within 30 days. (Para 21)
(E) Evidence Act, 1872, Sec. 114 — Presumption of service, under the statute, would arise not only when it is sent by registered post in terms of Section 27 of the General Clauses Act but such a presumption may be raised also U/s 114 of the Evidence Act — Even when a notice is received back with an endorsement that the party has refused to accept, still then a presumption can be raised as regards the valid service of notice. (Para 22)
(F) I.P.C., 1860, U/s 415 — Offence of Cheating — Requirements of : (i) deception of any person, (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property — Deception of any person is common to the second and third requirements of the provision. (Para 27)
(G) Negotiable Instruments Act, 1881, Sec. 138 — The Court had no jurisdiction to allow the amendment of the complaint petition at a later stage. (Para 30)
¼v½ ijdkE; fyf[kr vf/kfu;e] 1881] /kkjk&138 rFkk ijUrqd /kkjk&142 miokD; (b) ls tksM+k x;k tks ijdkE; fyf[kr ¼la'kks/ku½ rFkk fofo/k izko/kku vf/kfu;e] 2002 ls cnyk gS & vijk/k nf.Mr vUrxZr /kkjk&138 & ,d f'kdk;r ;kfpdk ifjlheu dky 20-04-2001 dks lekIr gksus ds ckn ;ksftr & /kkjk&142 miokD; (b) esa tksM+k x;k ijUrqd ekSfyd gksus ds dkj.k Hkwry{kh izHkko ugha gS & ;g f'kdk;r ;kfpdk ifjlheu dky ls ckf/kr gksus dk dkj.k ekU; ugha gS & eftLVªsV dk laKku ysus dk {ks=kf/kdkj ifjlheu dky lekIr gksus ds ckn ugha gS bl ij iznku djuk ,d ekg dk le; foosdh; :i ls lekIr djuk gSA ¼izLrj 5] 7] 8] 11] 13] 24] 26½
¼c½ ijdkE; fyf[kr vf/kfu;e] 1881] /kkjk&138 & ,d vijk/k nf.Mr vUrxZr èkkjk&138 vko';d rRo iznf'kZr & fufoZokn] vr%] tc rd iwoZdkfyd 'krs± vf/kfu;e ds vijk/k dk laKku ysus ds fy, iw.kZ u gksa & bl dkj.k U;k;ky; dks vkns'k ikfjr djus dk dksbZ {ks=kf/kdkj ugha gSA ¼izLrj 14] 15½
¼l½ lk/kkj.k [k.M vf/kfu;e] 1897] /kkjk&27 & lk/kkj.k [k.M vf/kfu;e ds izkoèkku dh vof/k esa] ,d uksfVl ekuk tk;sxk fd lkekU; vuqde o 'krks± dks iwjk djus ij izsf"kr gSA ¼izLrj 21½
¼n½ flfoy lafgrk izfd;k] 1908] vkns'k V] fu;e 9¼5½ & leu dh rkehy dh voèkkj.kk & leu dh rkehy ekuh tk;sxh ;fn og 30 fnu esa okfil ugha vkrsA ¼izLj 21½
¼;½ lk{; vf/kfu;e] 1972] /kkjk&114 & rkehy dh mi/kkj.kk] vUrxZr vf/kfu;e] dsoy rHkh mRié ugha gksxh tc og jftLVMZ Mkd }kjk Hksth gS lkekU; [k.M vf/kfu;e dh /kkjk&27 dh vof/k esa ijUrq ;g mi/kkj.kk /kkjk&114 lk{; vf/kfu;e esa Hkh mRié gS & ;gk¡ rd fd ;fn uksfVl okfil bl i`"Bkadu ds lkFk fd i{k us ysus ls euk dj fn;k gS okfil vkrk gS rks rc Hkh mi/kkj.kk mRié gksxh uksfVl dk oS/k rkehyA ¼izLrj 22½
¼j½ Hkkjrh; n.M lafgrk] 1860] vUrxZr /kkjk&415 & Ny dk vijk/k & vko';drk,a & (i) O;fDr dk Nqikuk & (ii) tgk¡ diViwoZsd ;k csbZekuh iwoZd fdlh O;fDr dks lEifRr iznku djus ds fy, mdlkuk fdlh O;fDr dks ;k lgefr nsuk fd lEifRr dks jksds (iii) vk'k;iwoZd mdlkuk dqN djus ;k yksi djus ds fy, ftldks og u djus ds fy, ;k djus ds fy, /kks[kk nsuk rFkk og dk;Z rFkk dk;Z yksi djs ;k gkfu igqapk;s ;k fdlh O;fDr ds 'kjhj] efLr"d] O;k[;k ;k lEifRr dks & /kks[kk nsuk fdlh O;fDr dks ,d f}rh; rFkk r`rh; vko';drk esa ,d lkFk izko/kku gSA ¼izLrj 27½
¼y½ ijdkE; fyf[kr vf/kfu;e] 1881] /kkjk&138 & U;k;ky; ds {ks=kf/kdkj la'kksèku f'kdk;r ;kfpdk esa i'pkr esa djus dk ugha gSA ¼izLrj 30½
S.B. Sinha, J. — Leve granted.
2. Whether the proviso appended to Section 142 of the Negotiable Instruments Act, 1881 (for short “the Act”) inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, is retrospective in operation is the question involved in this appeal which arises out of a judgment and order dated 19.10.2007 passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 330 of 2007.
3. The relationship between the parties hereto was that of a borrower and creditor. A financial loan of Rs. 1,70,000/- was obtained by the appellant in 1996 from the respondent No. 1, which according to him has been paid off. Two post dated cheques – one bearing No. 460157 dated 6.12.1996 for a sum of Rs. 26,900/- and the other bearing No. 460158 dated 28.09.2000 for a sum of Rs. 1,70,000/-, however, were handed over to him.
4. Appellant contends that the amount of loan was repaid in cash. –Admittedly, the cheques were presented before the bank on 10.01.2001. They were returned to the respondent No. 1 by the bank alleging that no such account, in the name of the appellant was in operation. A legal notice dated 17.01.2001 was sent by speed post asking the appellant to pay the said amount of Rs. 1,70,000/- failing which legal action including criminal action would be taken against him.
5. A complaint petition alleging commission of an offence under Section 138 of the Act, however, was filed only on 20.04.2001.
6. Indisputably, the complaint petiton was sought to be amended for adding Section 420 of the Indian Penal Code in the complaint petition. The said application was allowed by an order dated 14.08.2001.
7. Appellant filed an application for discharge on 16.12.2003 inter alia on the premise that the said complaint petition was barred by limitation. It was dismissed by an order dated 14.11.2006. The revision application, filed by the appellant before the learned Additional Sessions Judge was also dismissed. A criminal writ petition filed by the appellant marked as Criminal Writ Petition No. 330 of 2007 before the High Court of Bombay has been dismissed by reason of the impugned judgment holding :
(i) The question as to whether the complaint is barred by limitation is a mixed question of law and fact. Even otherwise as a result of amendment of Clause (b) of Section 142 of the Act even if delay has been caused in filing the complaint, the Magistrate has power to condone the delay;
(ii) Although the Magistrate could not have allowed amendment of the complaint petition but as it discloses sufficient averments in regard to commission of an offence under Section 420 of Indian Penal Code, the Trial Court was justified in issuing the process in respect of the said provision also.
8. Mr. Manish Mohan, learned counsel appearing on behalf of the appellant would submit that the High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration that :
(i) the complaint petition was barred by limitation, which would be evident from the admitted facts;
(ii) the proviso appended to Clause (b) of Section 142 being substantive in nature cannot be held to be retrospective in operation;
(iii) allegations made in the complaint petition even if given face value and taken to be correct in their entirety, no case has been made out for taking cognizance under Section 420 of the Indian Penal Code;
(iv) in any event, as the principal complaint being for commission of an offence under Section 138 of the Act was not maintainable, the application for amendment to insert Section 420 of the Indian Penal Code was also not maintainable.
9. Mr. Santosh Paul, learned counsel appearing on behalf of the respondent No. 1, submitted that from a perusal of the complaint petition it would appear that the date of service of notice being not fixed and the complainant having asked the post office to disclose the date of actual service of notice, it cannot be said that
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