Chouradiya Trading Company Vs. Sushil Kumar - Court Judgment

Excerpt:
- - 2. brief facts as alleged are that the complainant chouradiya trading company as well as the respondent sushil kumar due to business had entered into an agreement dated 3-10-01 for transporting garlic valued at rs. 4. the accused being aggrieved, had filed a revision before the additional sessions judge, jaora that the application ought to have dismissed also on the ground that the legal notice sent by the complainant was also bad in law, since it is stated that the money was to be refunded within ten days. notice dated 26-3-02 had been sent and was received immediately on the next date by the accused on 27-3-02 and the complaint was filed before the court on 3-4-02 which clearly indicates that sufficient time for repayment had not been granted. ) 703, whereby the apex court has clearly held that section 138 of the act does not speak of 15 days notice;ordershubhada r. waghmare, j. 1. by this revision petition under section 397 read with section 401 of the cr.pc, chouradiya trading company through its proprietor ashok kumar has challenged order dated 29-9-06 passed by the additional sessions judge, jaora, district ratlam in criminal revision no. 102/06 dismissing the complaint of the petitioner complainant.2. brief facts as alleged are that the complainant chouradiya trading company as well as the respondent sushil kumar due to business had entered into an agreement dated 3-10-01 for transporting garlic valued at rs. 1,10,500/-in regard to which the accused sushil kumar had given a cheque dated 21-3-02 drawn on union bank of india. when it was presented to the bank for disbursement on 21-3-02 by the complainant, it was returned with the remark of 'insufficiency of funds' in the account and hence, the complainant sent legal notice to the accused respondent on 26-3-02 and due to non-compliance, offence under section 138 of the negotiable instruments act (for short 'the act') was registered against the accused.3. the trial court on considering the evidence, however, found that the complaint was premature under section 142 of the act and dismissed the plaint, since according to the mandatory provisions of the act, a notice of 15 days has to be given to the accused for repayment, which was not done under the circumstances. counsel for the accused, therefore, orally prayed on 17-4-06 before the trial court that the complaint was not maintainable since the mandatory period under section 142 of the act was not fulfilled and a valuable right accrued to the accused and the complaint was filed before the court before the expiry of the mandatory period. the complainant/non-applicant opposed the prayer stating that although the complaint had been filed prematurely, cognizance of the offence was taken by the court only on 28-9-02, thus, it had allowed more than sufficient time under section 142 of the act and hence it could not be said that the complaint was premature. relying on the directions made in the matter of bapulal v. krupachand jain 2005 cldc 18, the court held that a complaint cannot be dismissed, even if it is prematurely filed, what has to be seen is that the mandatory period for repayment has been allowed the accused under section 138 of the act before taking cognizance of the complaint and hence, the trial court in the present case had held that the complaint was maintainable and therefore, proceeded in the matter.4. the accused being aggrieved, had filed a revision before the additional sessions judge, jaora that the application ought to have dismissed also on the ground that the legal notice sent by the complainant was also bad in law, since it is stated that the money was to be refunded within ten days. moreover, from the above dates, it was also obvious that the complainant has not availed a period of 30 days subsequent to the dishonour of the cheque, but had filed the complaint prematurely and hence the trial court ought to have dismissed the same. the revisional court by the impugned order dated 29-9-06 upturned the finding for the trial court and held that the complaint was not maintainable and the mandatory period of 15 days as prescribed under the act was not given to the accused for repayment as mentioned in the notice. the complainant being aggrieved has filed the present revision.5. counsel for the petitioner has pointed out that the cheque dated 21-3-02 was dishonoured. notice dated 26-3-02 had been sent and was received immediately on the next date by the accused on 27-3-02 and the complaint was filed before the court on 3-4-02 which clearly indicates that sufficient time for repayment had not been granted. however, cognizance was taken by the trial court for offence under section 138 of the act only on 28-9-02, i.e., after about a period of almost of six months and hence the trial court had properly placed reliance on bapulal v. krupachand jain (supra), whereby on the basis of the observations made by the apex court in narsingh das tapadia v. goverdhan das partani and anr. : air 2000 sc 2946, this court had directed that a complaint cannot be dismissed merely because it was prematurely filed. if the cognizance is taken after the mandatory period prescribed under section 142(b) of the act has elapsed, then the court may not take cognizance till the time, cause of action arises to the complainant and thus had rightly continued with the proceedings, whereas the revisional court had erred while holding that the statutory period of 15 days has to elapse before taking cognizance, otherwise the complaint has to be dismissed. counsel for the petitioner further relied on rahul builders v. arihant fertilizers & chemicals and anr. 2008(1) m.p.h.t. 146 (sc) : (2008) 1 scc (cri.) 703, whereby the apex court has clearly held that section 138 of the act does not speak of 15 days notice; it contemplates service of notice and payment of the amount of cheque within a period of 15 days from the date of receipt thereof and counsel contended that the revisional court had fallen into error by misconstruing that the legal notice has to be mentioned 15 days for repayment and complaint cannot be filed before the expiry of the said period of 15 days. counsel stated that the revision be set aside since the revisional court had fallen into error and dismissed his complaint.6. counsel for the respondent on the other hand has stated that the valuable right accrued to the accused as granted by sections 138 and 142 of the act stating that a period of one month has to elapse intervening this and filing of the complaint before the said period, if filed does not disclose the cause of action in terms of clause (c) of the proviso to section 138 of the act. in the instant case, the complaint had been prematurely filed within few days of the notice dated 26-3-07; it was not as if the accused is not willing to pay the money and the opportunity was lost since the complaint had been filed before the trial court and appreciating this very fact, the revisional court has dismissed the complaint. counsel prayed for dismissal of this revision also.7. considering the above entire controversy, i find that counsel for the petitioner is right in his submissions that a complaint filed under section 138 of the act cannot be dismissed on the ground that it is premature before the mandatory period as prescribed under section 142 of the act is over. the apex court has time and again held that if the cognizance of the offence under section 138 of the act is taken after the mandatory period as prescribed under section 142 of the act and grants the accused time to make repayment as prescribed under section 142 of the act, then there should be no grievance of the accused and if he still does not make the payment and then the complaint would be maintainable since taking of cognizance of offence amounts to taking cognizance of the complaint on the said date and hence the purpose of the provisions is to be seen, if more than ample time is afforded to make the repayment. the apex court in the matter of rahul builders (supra), has held thus:section 138 of the act does not speak of a 15 days' notice. it contemplates service of notice and payment of the amount of cheque within 15 days from the date of receipt thereof. when the statute prescribes for service of notice specifying a particular period, it should be expressly stated. in absence of any such stipulation, it is difficult to hold that 15 days' notice was thereby contemplated. the high court, therefore, was not correct in arriving at the aforementioned finding.8. thus, counsel stresses the use of the phraseology 'payment of the said amount of money'. such a notice has to be issued within a period of 15 days from the date of receipt of the information from the bank regarding, the return of the cheque as unpaid. the rest of the directions pertains the vagueness of the notice, which is not the question in the present case.9. thus, in this light, i find that the revisional court has erred in coming to the conclusion that the complaint was not maintainable and premature since the cognizance of the offence was taken late which afforded the accused respondent every opportunity for repayment in terms of section 138 and section 142 of the act, then i find that the impugned order needs to be set aside as it is misconceived and the trial court was right in holding that the complaint was maintainable.10. thus, in view of the above, the revision petition is allowed; the impugned order passed by the revisional court is set aside and that of the trial court dated 17-4-06 holding that the complaint was maintainable is restored. the trial court shall continue with the proceedings in accordance with law and decide the matter as expeditiously as possible.

Judgment:
ORDER

Shubhada R. Waghmare, J.

1. By this revision petition under Section 397 read with Section 401 of the Cr.PC, Chouradiya Trading Company through its proprietor Ashok Kumar has challenged order dated 29-9-06 passed by the Additional Sessions Judge, Jaora, District Ratlam in Criminal Revision No. 102/06 dismissing the complaint of the petitioner complainant.

2. Brief facts as alleged are that the complainant Chouradiya Trading Company as well as the respondent Sushil Kumar due to business had entered into an agreement dated 3-10-01 for transporting garlic valued at Rs. 1,10,500/-in regard to which the accused Sushil Kumar had given a cheque dated 21-3-02 drawn on Union Bank of India. When it was presented to the Bank for disbursement on 21-3-02 by the complainant, it was returned with the remark of 'insufficiency of funds' in the account and hence, the complainant sent legal notice to the accused respondent on 26-3-02 and due to non-compliance, offence under Section 138 of the Negotiable Instruments Act (for short 'the Act') was registered against the accused.

3. The Trial Court on considering the evidence, however, found that the complaint was premature under Section 142 of the Act and dismissed the plaint, since according to the mandatory provisions of the Act, a notice of 15 days has to be given to the accused for repayment, which was not done under the circumstances. Counsel for the accused, therefore, orally prayed on 17-4-06 before the Trial Court that the complaint was not maintainable since the mandatory period under Section 142 of the Act was not fulfilled and a valuable right accrued to the accused and the complaint was filed before the Court before the expiry of the mandatory period. The complainant/non-applicant opposed the prayer stating that although the complaint had been filed prematurely, cognizance of the offence was taken by the Court only on 28-9-02, thus, it had allowed more than sufficient time under Section 142 of the Act and hence it could not be said that the complaint was premature. Relying on the directions made in the matter of Bapulal v. Krupachand Jain 2005 CLDC 18, the Court held that a complaint cannot be dismissed, even if it is prematurely filed, what has to be seen is that the mandatory period for repayment has been allowed the accused under Section 138 of the Act before taking cognizance of the complaint and hence, the Trial Court in the present case had held that the complaint was maintainable and therefore, proceeded in the matter.

4. The accused being aggrieved, had filed a revision before the Additional Sessions Judge, Jaora that the application ought to have dismissed also on the ground that the legal notice sent by the complainant was also bad in law, since it is stated that the money was to be refunded within ten days. Moreover, from the above dates, it was also obvious that the complainant has not availed a period of 30 days subsequent to the dishonour of the cheque, but had filed the complaint prematurely and hence the Trial Court ought to have dismissed the same. The Revisional Court by the impugned order dated 29-9-06 upturned the finding for the Trial Court and held that the complaint was not maintainable and the mandatory period of 15 days as prescribed under the Act was not given to the accused for repayment as mentioned in the notice. The complainant being aggrieved has filed the present revision.

5. Counsel for the petitioner has pointed out that the cheque dated 21-3-02 was dishonoured. Notice dated 26-3-02 had been sent and was received immediately on the next date by the accused on 27-3-02 and the complaint was filed before the Court on 3-4-02 which clearly indicates that sufficient time for repayment had not been granted. However, cognizance was taken by the Trial Court for offence under Section 138 of the Act only on 28-9-02, i.e., after about a period of almost of six months and hence the Trial Court had properly placed reliance on Bapulal v. Krupachand Jain (supra), whereby on the basis of the observations made by the Apex Court in Narsingh Das Tapadia v. Goverdhan Das Partani and Anr. : AIR 2000 SC 2946, this Court had directed that a complaint cannot be dismissed merely because it was prematurely filed. If the cognizance is taken after the mandatory period prescribed under Section 142(b) of the Act has elapsed, then the Court may not take cognizance till the time, cause of action arises to the complainant and thus had rightly continued with the proceedings, whereas the Revisional Court had erred while holding that the statutory period of 15 days has to elapse before taking cognizance, otherwise the complaint has to be dismissed. Counsel for the petitioner further relied on Rahul Builders v. Arihant Fertilizers & Chemicals and Anr. 2008(1) M.P.H.T. 146 (SC) : (2008) 1 SCC (Cri.) 703, whereby the Apex Court has clearly held that Section 138 of the Act does not speak of 15 days notice; it contemplates service of notice and payment of the amount of cheque within a period of 15 days from the date of receipt thereof and Counsel contended that the Revisional Court had fallen into error by misconstruing that the legal notice has to be mentioned 15 days for repayment and complaint cannot be filed before the expiry of the said period of 15 days. Counsel stated that the revision be set aside since the Revisional Court had fallen into error and dismissed his complaint.

6. Counsel for the respondent on the other hand has stated that the valuable right accrued to the accused as granted by Sections 138 and 142 of the Act stating that a period of one month has to elapse intervening this and filing of the complaint before the said period, if filed does not disclose the cause of action in terms of Clause (c) of the proviso to Section 138 of the Act. In the instant case, the complaint had been prematurely filed within few days of the notice dated 26-3-07; it was not as if the accused is not willing to pay the money and the opportunity was lost since the complaint had been filed before the Trial Court and appreciating this very fact, the Revisional Court has dismissed the complaint. Counsel prayed for dismissal of this revision also.

7. Considering the above entire controversy, I find that Counsel for the petitioner is right in his submissions that a complaint filed under Section 138 of the Act cannot be dismissed on the ground that it is premature before the mandatory period as prescribed under Section 142 of the Act is over. The Apex Court has time and again held that if the cognizance of the offence under Section 138 of the Act is taken after the mandatory period as prescribed under Section 142 of the Act and grants the accused time to make repayment as prescribed under Section 142 of the Act, then there should be no grievance of the accused and if he still does not make the payment and then the complaint would be maintainable since taking of cognizance of offence amounts to taking cognizance of the complaint on the said date and hence the purpose of the provisions is to be seen, if more than ample time is afforded to make the repayment. The Apex Court in the matter of Rahul Builders (supra), has held thus:

Section 138 of the Act does not speak of a 15 days' notice. It contemplates service of notice and payment of the amount of cheque within 15 days from the date of receipt thereof. When the statute prescribes for service of notice specifying a particular period, it should be expressly stated. In absence of any such stipulation, it is difficult to hold that 15 days' notice was thereby contemplated. The High Court, therefore, was not correct in arriving at the aforementioned finding.

8. Thus, Counsel stresses the use of the phraseology 'payment of the said amount of money'. Such a notice has to be issued within a period of 15 days from the date of receipt of the information from the Bank regarding, the return of the cheque as unpaid. The rest of the directions pertains the vagueness of the notice, which is not the question in the present case.

9. Thus, in this light, I find that the Revisional Court has erred in coming to the conclusion that the complaint was not maintainable and premature since the cognizance of the offence was taken late which afforded the accused respondent every opportunity for repayment in terms of Section 138 and Section 142 of the Act, then I find that the impugned order needs to be set aside as it is misconceived and the Trial Court was right in holding that the complaint was maintainable.

10. Thus, in view of the above, the revision petition is allowed; the impugned order passed by the Revisional Court is set aside and that of the Trial Court dated 17-4-06 holding that the complaint was maintainable is restored. The Trial Court shall continue with the proceedings in accordance with law and decide the matter as expeditiously as possible.