Rajeshwar Prasad Bhardwaj vs State Of U.P. And Others
2018 Latest Caselaw 4213 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 53
 

 
Case :- APPLICATION U/S 482 No. - 11949 of 2004
 
Applicant :- Rajeshwar Prasad Bhardwaj
 
Opposite Party :- State Of U.P. And Others
 
Counsel for Applicant :- Hemendra Pratap Singh
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble J.J. Munir,J.

(1) A perusal of the office report dated 25.4.2018/7.12.2018 shows that notice issued to opposite party no. 2 has been received back after service. The service report received from the Chief Judicial Magistrate, Aligarh shows that the second opposite party has been personally served.

(2) Accordingly, service upon opposite party No. 2 is held sufficient.

(3) No one has put in appearance on behalf of the second opposite party. The Court, accordingly, proceeds to hearing.

(4) Heard Sri Dharmendra Pratap Singh holding brief of Sri Hemendra Pratap Singh, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned A.G.A. on behalf of the State. 

(5) This is an application under Section 482 Cr.P.C. seeking to quash the entire proceedings of Case No. 1023 of 2003, Ramesh Chandra Bhardwaj vs. Rajeshwar Prasad Bhardwaj, under Section 138 of Negotiable Instruments Act, police station Quarsi, District Aligarh pending in the Court of the First Special Magistrate, Aligarh.

(6) Facts giving rise to the present application lie in a narrow compass.

(7) The dispute involved here, is about the realization of a cheque of the worth of Rs. 50,000/- dated 20.04.1999 drawn on the State Bank of India, Branch Dharam Samaj College, Aligarh and payable to opposite party no. 2, Ramesh Chandra Bhardwaj. The cheque aforesaid was handed over to Ramesh Chandra Bharadwaj, opposite party no. 2, who is hereinafter referred to as payee, on 14.02.1999 as a post dated instrument. 

(8) The cheque aforesaid was presented by the payee for realization to his bank on 21.08.1999, and was returned to him dishonored on 24.08.1999, with a bank memo from the payee's bank, indicating the reason of dishonor to be "insufficient fund". The payee caused a notice of demand to be issued to the applicant on 02.09.1999, by registered post. It was served upon the applicant on 16.09.1999. Alleging in paragraph No. 7 of the impugned complaint, that the notice of demand had been served upon the applicant on 06.09.1999, the payee filed the impugned complaint on 24.09.1999 before the Magistrate. The complaint was registered as Complaint Case No. 982 of 1999, on the file of the IIIrd Additional Chief Judicial Magistrate, Aligarh. In support of the complaint, the payee examined himself on oath under Section 200 Cr.P.C., on 24.09.1999, and the Magistrate on the basis of the statement  recorded, summoned the applicant to stand his trial for an offence punishable under Section 138 Negotiable Instruments Act (in short 'the Act') by his order dated 19.09.2000.

(9) This application was filed before this Court on 2nd November, 2004 seeking to quash the impugned complaint, amongst others, on ground that the notice of demand was served upon the applicant on 16.09.1999 whereas the impugned complaint was filed on 24.09.1999, that is to say, much before the expiry of the mandatory period of 15 days, envisaged by Clause (c) to the Proviso to Section 138 of the Act. This Court issued notice vide order dated 08.11.2004 and stayed further proceedings before the Magistrate. Now, after all this while this application has come up for hearing where, as has already said hereinbefore, despite service of notice upon the payee, he has not put in appearance. Thus, the assertions of fact set out in the affidavit filed in support of the complaint, remain unrebutted. To this Court's understanding the most important facts are, the date on which the notice of demand was served upon the payee, and, the date on which the impugned complaint was filed before the Magistrate. No doubt, there is a specific assertion in paragraph 4 of the affidavit in support of the complaint that the notice of demand was served upon the payee on 16.09.1999, and when payment was not made good, the impugned complaint was moved by the payee on 24.09.1999. This fact is re-asserted in aid of a ground to quash, in paragraph 10 of the affidavit also. But the fact that these two most crucial dates stand unrebutted on record, in the absence of the payee's denial on oath, does not absolve this Court of its responsibility to verify these two crucial dates, upon which event in this case may turn. 

(10) This Court in order to ascertain the truth about these two dates, has looked into the enclosed record, where there is a photostat copy of the acknowledgment card, and the registered postal receipt, filed by the payee in support of the impugned complaint before the Magistrate, annexed as Annexure 4 to the affidavit. Upon a perusal of the aforesaid photostat copy of the acknowledgment card, there is a clear endorsement about acknowledgment of the notice of demand by the applicant, where the date shown is 16.09.1999. It is not 06.09.1999. There is no doubt a super imposition of the figure 9, above the figure 2, that was originally written for the month, but nothing happened in the month of February, 1994. Therefore, it is no more than a correction made to the month, in the endorsement of date of receipt of the notice of demand, about which there is no quarrel. The quarrel, if at all, is about the day of September when the notice was served, and, to this Court's reading of the copy of the acknowledgment card, it is unmistakably 16th September and not 6th September. The Magistrate, as a perusal of the summoning order dated 19.09.2000 would show, has proceeded on the assumption that date of service of notice of demand upon the applicant, is 06.09.1999. The said finding is beset by an error apparent.

(11) Sri Indrajeet Singh Yadav, learned A.G.A. has taken up cudgels in defence of the impugned proceedings and the summoning order passed by the Magistrate. He submits that the issue whether the notice was served on 06.09.1999 or 16.09.1999 is a question of fact, which requires a trial to determine it. It is no more than a defence which the applicant can raise at the trial. This Court does not think so. As indicated already, the document is so clear, that there is no doubt in the mind of this Court, that the Magistrate in reading the date of service of notice to be 06.09.1999, instead of 16.09.1999, has committed an error apparent on the face of record. Now, the short legal issue that remains to be answered is whether a complaint could be entertained, and process issued on its basis, by the Magistrate before the expiry of 15 days from the service of notice of demand, as postulated by Clause (c) of the Proviso to Section 138 of the Act. In this connection it would be of profit to quote the provisions of Section 138 of the Act in extenso:

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 extend to [two] years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained 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 thirty 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 the 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.

(12) A reading of provisions of Section 138 of the Act, together with its proviso, shows that the proviso prescribes the manner in which a prosecution under Section 138 of the Act is to be launched, prescribing a calendar for it. The conditions enumerated in Clauses (a) and (b) of the proviso, are not relevant to the issue, that arises in the present case. But Clause (c) to the proviso clearly stipulates, that the last event in the calendar is dealt with there, which says, that an offence under the Section would be made out, if the drawer of a cheque fails to make payment of the due amount of money to the payee, or as the case may, to the holder in due course of the cheque, within 15 days of receipt of the said notice. Logically, a complaint will not be maintainable, if it is instituted on the 10th day, the 11th day or even the 14th day of receipt of notice of demand by the payee from the drawer, envisaged under Clause (b) to the Proviso. The complaint in that case would be premature and, therefore, not maintainable. The Magistrate cannot take cognizance of a complaint, or issue process to the drawer, for an offence punishable under Section 138 of the Act. Subsequent passage of time will not count towards the scheduled number of days, envisaged under clause (c) of Proviso to Section 138 of the Act, for a valid cause of action can accrue only on the expiry of 15 days from the date of receipt of notice of demand, and not earlier. The cause of action must have accrued to the drawer on the day when the complaint is filed; it makes no difference that the period of 15 days passes by, after the complaint is filed. The provisions of Section 138, including Clause (c) to the Proviso, being penal, have to be strictly construed. In short, there can be no valid complaint, before the expiry of the period of 15 days from the date of service of a notice of demand, upon the payee by the drawer. Proceedings taken on the basis of a complaint brought earlier, would not at all be maintainable.

(13) The aforesaid question fell for consideration of their Lordships of the Supreme Court in Yogendra Pratap Singh vs. Savitri Pandey & Anr.1 reported in which is a three Judge Bench decision of their Lordships in view of conflicting two Judge Bench decisions in Narsingh Das Tapadia v. Goverdhan Das Partani and Anr.2 on the one hand and in Sarav Investment & Financial Consultancy Private Limited and Anr. v. Llyods Register of Shipping Indian Office Staff Provident Fund and Anr.3 where differing views had been expressed by their Lordships, regarding the issue whether the period of 15 days would be taken to have validly come to an end, if on the date the order of cognizance was passed, the statutory period of 15 days, from the date of service of notice of demand, had expired. Their Lordships held, in agreement with Sarav Investment & Financial Consultancy (Supra), that the stipulation of expiry of a period of 15 days from the date of receipt of notice of demand, was a part of the cause of action, and therefore, for a valid complaint, the period had to be over on or before the date when the complaint was filed, and not later, pending complaint, say the date on which the summoning order was passed. It was also held by their Lordships in Yogendra Pratap Singh (Supra), that the same complaint could not be permitted to be presented at a later stage, though a fresh complaint could be brought, seeking condonation of delay, in accordance with the Proviso to Clause (b) of Section 142 of the Act.

(14) In the facts of the present case the principle in Yogendra Pratap Singh (Supra) are squarely attracted, and for all that has been said above, the impugned complaint is liable to be quashed. Though, technically and remotely, the applicant may be at liberty to bring a fresh complaint, after seeking condonation of delay, under the Proviso to Clause (b) of Section 142 of the Act, this Court thinks that permitting the applicant to do so, at this distance of time would be an abuse of process of Court. May be, it would be in the end a wasteful exercise, as by now it would be, in any case, a time barred debt. This Court, particularly, takes this view not to permit a fresh complaint based on the same cause of action, which by almost all standards, is ancient, in view of the conduct of the payee, who has never come forward to contest this application, or seek vacation of the interim order passed in the present application, in all these 14 years. 

(15) In the result this application succeeds and is allowed. The impugned complaint giving rise to Complaint Case No. 1023 of 2003, Ramesh Chandra Bharadwaj vs. Rajeshwar Prasad Bharadwaj, under Section 138 Negotiable Instruments Act, P.S. Quarsi, District Aligarh pending in the Court of First Special Magistrate, Aligarh is hereby quashed.

Order Date :- 11.12.2018

BKM/-