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2011 Supreme(UK) 464
2011 (2) N.C.C. 673
UTTARAKHAND HIGH COURT
Servesh Kumar Gupta
Criminal Misc. Application No. 624 of 2005 (U/S 482 Cr.P.C.)
M.C. GUPTA & ANR. – Applicants
Versus
STATE OF UTTARANCHAL & ORS. – Respondents
Decided on : 27.08.2011
For the Applicants : Mr. Piyush Garg, Advodate
For the Respondent Nos. 1 to 3: Mr. P.S. Bohra, Brief Holder
For the Respondent Nos. 4 & 5: Mr. L.K. Tewari, Adv. i/b Mr. J.P. Joshi, Adv.
Headnote:Negotiable Instruments Act, 1881, Sec. 138 — Dishonour of cheque — Respondent sent notice dated 27.06.1995 to the petitioner with the intention of demanding the amount of cheque, to make the payment immediately — But not the intention of the Legislature that specific period of 15 days should have been mentioned in the notice — Word 'immediately' covers the period within 15 days — Therefore, the notice dated 27.06.1995 was perfectly a legal and valid notice, as has been envisaged u/s 138(b) of the Act, 1881 — The complaint should have been filed for recovery of the said money within 45 days from the date 27.6.1995 mentioned in the notice — Instead, the complaint was filed on 31.1.1996 — Thus, complaint is being time barred, cognizance dated 4.2.1997 made on the basis of such a complaint — Not allowed to exist — Petition deserves to be allowed. (Paras 14 to 16)
ijkØE; fy[kr vf/kfu;e] 1881] /kkjk 138 & pSd vuknj.k & mÙkjnkrk }kjk pSd dh /kujkf'k ekaxus dh fu;r ls ;kph dks fnukad 27-06-1995 dk uksfVl rkehy djk;k Fkk rkfd og rqjUr Hkqxrku djs & ijUrq fof/k dh fu;r 15 fnu dh fof'k"V vof/k uksfVl esa ugha n'kkZbZ tkuh pkfg, Fkh & 'kCn ^rqjUr* ls 15 fnu dh vof/k lqLi"V gks tkrh gS & blfy, fnukad 27-06-1995 dk uksfVl iw.kZr;k ,d dkuwuh oSèk uksfVl Fkk tSlk fd /kkjk 138(b) vf/kfu;e 1881 esa n'kkZ;k x;k gS & f'kdk;rh nkok fnukad 27-6-1995 ls 45 fnu ds vUnj mDr /kujkf'k ds Hkqxrku okLrs nk;j fd;k tkuk pkfg, Fkk & blds ctk, f'kdk;rh nkok fnukad 31-1-1996 dks nk;j fd;k x;k Fkk & bl izdkj f'kdk;rh nkok dkykrhr gksus dh otg ls ml ij fnukad 4-2-1997 dks laKku dk fy;k tkuk fVdkÅ Lohdkj ugha gS & ;kfpdk Lohdkj fd;s tkus ;ksX; gSA ¼izLrj 14 ls 16½
By way of this criminal application, the prayer has been made to quash the order of cognizance dated 4.2.1997 passed by the Civil Judge (Junior Division) Rishikesh in criminal complaint case no. 236 of 1996, M/s. Prestige Lights Ltd. Vs. M/s. Gupta Agencies.
2. Heard learned counsel for the parties and perused the material available on record.
3. Factual matrix, qua the controversy behind the entire episode, is that there were business terms between M/s. Gupta Agencies and M/s. Prestige Lights Limited. The latter manufacturers the electric goods while the former was a dealer of M/s. Prestige Lights. Certain goods were supplied by M/s. Prestige Lights to M/s. Gupta Agencies and in consideration, as a price of those goods, a cheque No. QVJ/347109 dated 23.5.1995 was issued by M/s. Gupta Agencies to M/s. Prestige Lights Ltd. To the tune of Rs. 1.10 lacs. That cheque, while presented for encashment, was dishonoured by the bank concerned due to insufficiency of funds in the account of drawer of the same.
4. Thereafter a notice dated 27.6.1995 was sent on behalf of M/s Prestige Lights by Sri M.K. Goyal, Managing Director to Sri M.C. Gupta, the proprietor of M/s. Gupta Agencies. For probity, it would be expedient in the interest of justice to reproduce the language of that letter as it is :-
“Dear Sir,
Your Cheque No. QVJ 347109 dated 23.5.95 for Rs. 1,10,000/- has been returned to us as unpaid by your Bank, due to shortage of funds. We regret that a person like you should also not keep its commitment.
As you know, under Section 138 of Negotiable Instruments Act, it is a criminal offence, if the Cheque is returned as unpaid and you know that there is severe penalty against this offence.
You are therefore requested to please send us the Demand Draft for this payment immediately, otherwise we will have no option, but to send you a legal notice and there-after lodge a criminal complaint against you. We hope you will understand the gravity of the situation very well and will contact us on telephone immediately.”
5. After sending this notice, the payment was not received by M/s. Prestige Lights and another notice dated 1.1.1996 was again sent by M/s. Prestige Lights to M/s. Gupta Agencies, paragraph 3 whereof states that when the Cheque was submitted to the State Bank, it was dishonoured and returned to the Drawee on dated 19.12.1995 due to insufficiency of funds.
6. Through this notice, the payment was asked within 15 days of the receipt of the same. Since M/s. Gupta Agencies did not make any payment, as asked in the notice dated 1.1.1996, so within one month, as stipulated by the provisions of Section 142(b) of the Negotiable Instruments Act, 1881 (hereinafter will be referred as the Act), the complaint was filed on dated 31.1.1996 and after having the evidence u/s 200 and 202 Cr.P.C., the impugned order of cognizance dated 4.2.1997 has been passed.
7. It is also pertinent to mention that as per law, prevailing at that time, the objections were raised by M/s. Gupta Agencies against the order of cognizance before the Magistrate court itself but those objections were rejected on merits and the Magistrate was of the view that the complaint was well within the time limitation. M/s. Gupta Agencies filed a revision before the court of Sessions and that too was dismissed, inter alia, as not maintainable on the basis of law laid down in the case of “Subramaniam Vs. State of Maharashtra, 2005 (51) ACC Page 684” besides “Adalat Prasad Vs. Rooplal Jindal and others reported in (2004) 7 S.C.C. 338”.
8. Feeling aggrieved by the order of Magistrate as well as that of the Sessions Judge, this petition has been filed.
9. Learned counsel of the petitioner has contended that the first notice dated 27.6.1995 was a valid and legal notice, as envisaged by section 138(b) of the Act and the complaint by M/s. Prestige Lights Ltd. Could have been filed within 45 days from the date of receipt of this notice by the applicant. This not
