1997 3 Crimes(HC) 445 ; 1997 CrLJ 3691
1997 (3) Crimes 445
KARNATAKA HIGH COURT
M.P. Chinnappa, J.
Ashok Hegde - Petitioner
Versus
Jathin V. Attawan - Respondent
Crl. Petition No. 647 of 1994
Decided on 27-1-1997
Counsel for the parties:
For the Petitioner: Sri S. Vishwajith Singh, Advocate.
For the Respondent: None.
IMPORTANT POINT
Even when accused refused to accept notice issued u/s 138(b) of Negotiable Instruments Act, complaint has to be filed after expiry of 15 days from date of receipt of notice.
Act Referred :NEGOTIABLE INSTRUMENTS ACT : S.138(c), S.142
(A) This case centers on the strict interpretation of the statutory prerequisites for initiating a criminal complaint under the Negotiable Instruments Act. Specifically, Section 138(c) mandates that the drawer of a dishonoured cheque must be given a window of 15 days from the receipt of a written demand notice to make the payment. Section 142 further stipulates that a Court shall not take cognizance of an offence under Section 138 unless the complaint is made within one month from the date on which the cause of action arises under clause (c) of the proviso to Section 138. In this instance, the court analyzed whether the mandatory waiting period of 15 days had elapsed before the complaint was filed, as the cause of action only matures upon the failure of the drawer to pay within that specific timeframe.
(B) The core legal principle established is that the 15-day grace period provided to the drawer under Section 138(c) is a mandatory statutory requirement. A complaint filed before the expiry of this period is premature, and the court lacks the jurisdiction to take cognizance of such a complaint under Section 142.
Facts of the case:
The respondent filed a complaint against the petitioner after a cheque for Rs. 83,894/- was dishonoured with the endorsement 'stopped payment'. A legal notice was issued on 13-09-1989, which was returned unserved as the addressee refused receipt on 21-09-1989. The respondent subsequently filed the complaint on 27-09-1989. The petitioner sought to quash the proceedings on the grounds that the mandatory 15-day notice period was not granted.
Findings of Court:
The court found that while the notice was deemed served due to the petitioner's refusal, the complaint was filed on 27-09-1989, only six days after the notice was returned (21-09-1989). The court observed that the respondent failed to provide the 15 clear days required by law for the drawer to make the payment. Consequently, the cause of action had not yet arisen at the time of filing.
Issues:
Whether the complaint filed under Section 138 of the Negotiable Instruments Act was premature due to the failure to allow the drawer 15 days to make payment from the date of receipt of the notice.
Ratio Decidendi:
The cause of action for a complaint under Section 138 of the Negotiable Instruments Act arises only after the expiry of 15 days from the date of receipt of the demand notice. Filing a complaint before this period expires renders the proceedings premature and legally unsustainable, necessitating the quashing of the proceedings.
Result:
The petition was allowed, and the proceedings in C.C. No. 13178 of 1990 were quashed.
(A) This case centers on the strict interpretation of the statutory prerequisites for initiating a criminal complaint under the Negotiable Instruments Act. Specifically, Section 138(c) mandates that the drawer of a dishonoured cheque must be given a window of 15 days from the receipt of a written demand notice to make the payment. Section 142 further stipulates that a Court shall not take cognizance of an offence under Section 138 unless the complaint is made within one month from the date on which the cause of action arises under clause (c) of the proviso to Section 138. In this instance, the court analyzed whether the mandatory waiting period of 15 days had elapsed before the complaint was filed, as the cause of action only matures upon the failure of the drawer to pay within that specific timeframe.
(B) The core legal principle established is that the 15-day grace period provided to the drawer under Section 138(c) is a mandatory statutory requirement. A complaint filed before the expiry of this period is premature, and the court lacks the jurisdiction to take cognizance of such a complaint under Section 142.
Facts of the case:
The respondent filed a complaint against the petitioner after a cheque for Rs. 83,894/- was dishonoured with the endorsement 'stopped payment'. A legal notice was issued on 13-09-1989, which was returned unserved as the addressee refused receipt on 21-09-1989. The respondent subsequently filed the complaint on 27-09-1989. The petitioner sought to quash the proceedings on the grounds that the mandatory 15-day notice period was not granted.
Findings of Court:
The court found that while the notice was deemed served due to the petitioner's refusal, the complaint was filed on 27-09-1989, only six days after the notice was returned (21-09-1989). The court observed that the respondent failed to provide the 15 clear days required by law for the drawer to make the payment. Consequently, the cause of action had not yet arisen at the time of filing.
Issues:
Whether the complaint filed under Section 138 of the Negotiable Instruments Act was premature due to the failure to allow the drawer 15 days to make payment from the date of receipt of the notice.
Ratio Decidendi:
The cause of action for a complaint under Section 138 of the Negotiable Instruments Act arises only after the expiry of 15 days from the date of receipt of the demand notice. Filing a complaint before this period expires renders the proceedings premature and legally unsustainable, necessitating the quashing of the proceedings.
Result:
The petition was allowed, and the proceedings in C.C. No. 13178 of 1990 were quashed.
ORDER
M.P. Chinnappa, J. - This petition is filed under Section 482, Criminal Procedure Code to quash the proceedings pending against the petitioner in C.C. No. 13178 of 1990 (P.C. 71 of 1989), on the file of the III Additional Munsiff and Judicial Magistrate, First Class, Mangalore, Dakshina Kannada.
2. The brief facts of the case are the respondent filed a complaint under Section 200, Criminal Procedure Code on the allegation that the petitioner issued a cheque in a sum of Rs. 83,894/- towards repayment of the amount due to the respondent. The said cheque is dated 31-7-1989. The respondent presented the cheque to the bank but the same was dishonoured by the bank with an endorsement 'stopped payment'. Thereafter on 13-9-1989 the respondent got issued a legal notice to the petitioner. The said legal notice was returned un-served with a postal shara that addressee refused. Hence, the complaint was filed on 27-9-1989 before the Court. The learned Magistrate after taking cognizance of the offence directed to issue process. The said order is questioned in this case.
3. Heard the learned counsel for petitioner. Though notice was served on the respondent, he did not choose to appear or appoint a counsel.
4. The only contention raised by the petitioner in this case is that the respondent has not given 15 days time to the petitioner as contemplated under Section 138(b) of the Negotiable Instruments Act (for short 'the Act'). According to Section 138(b) of the Act, 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 15 days of receipt of the information by him from the bank regarding the return of the cheque as unpaid: and according to Section 138(c) the 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 15 days of the receipt of the said notice. From this it is clear that 15 days time has to be given as specified above.
5. It is no doubt true that he has complied with the requirement of Section 138(b) of the Act by sending a notice to the petitioner and the notice also is deemed to have been served on the petitioner as he refused to receive the notice. The question is whether he has complied with the requirement of Section l38(c) of the Act. The respondent ought to have given 15 clear days notice. In this case he has issued notice on 139-1989 and filed the con1plaint on 27-9-1989. Thus, it is clear he had not given 15 clear days notice. The complaint can be entertained by the Court only under Section 142 of the Act, which reads:
“Cognizance of offences. - Not withstanding anything contained in the Code of Criminal Procedure. 1973 (2 of 1974),
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:
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:
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."
The cause of action arises as contained in clause (b) of Section 142, only after the expiry of 15 days from the date of receipt of the notice.
6. In this case, from the perusal of the complaint itself, it is clear that he had issued the notice on 13-9-1989 and the complaint is filed on 27-9-1989. That on 31-7-1989 the accused issued the cheque bearing No. 235360 for Rs. 83,894/- in favour of the complainant, drawn on Syndicate Bank. Madhawanagar. The said cheque had been duly presented before the Corporation Bank. Pandeshwar Mangalore, which was returned by the bank unpaid with an endorsement "payment stopped by the drawer". The cheque in question has been issued by the accused towards the balance unpaid kist amount. Immediately on receipt of the above information, the registered notice dated 13-9-1989 was sent to the accused, but that has been received back on 21-9-1989 with an endorsement by the Postal Department 'Addressee refused'. Hence, it is clear that the intention of the accused is to cheat and to dupe the complainant and that he had no intention to pay the amount. Therefore, from the above it is clear that he received the notice back on 21-9-1989. Even accepting that the petitioner refused the notice on 20-9-1989, the respondent ought to have filed this complaint after the expiry of 15 days from the date of receipt of the notice by drawer. The date of issuance of notice cannot be taken into account, for the reasons stated above. Therefore, the cause of action had not arisen to file the complaint against the petitioner and the complaint was premature. However, the learned Magistrate has not taken into consideration this fact before passing the order directing issue of summons to the petitioner. Under those circumstances, it is a case where this Court has to interfere and the entire proceedings are liable to be quashed.
In the result, I proceed to pass the following:
ORDER
The petition is allowed. The proceedings in C.C. No. 13178 of 1990 (P.C. No. 71 of 1989) pending on the file of the III Additional Munsiff and Judicial Magistrate, First Class, Mangalore, Dakshina Kannada are quashed.
Petition allowed.