Ajay Gupta vs State Of Maharashtra And Anr.
2004 Latest Caselaw 592 Bom

JUDGMENT

D.B. Bhosale, J.

1. Heard Mr. Bhasin, learned counsel for the petitioner Mr. Konde-Deshmukh, learned A.P.P for respondent No. 1 and Mr. Shinde, learned counsel for respondent No. 2.

2. This writ petition under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code is directed against the order dated 9-10-2003 passed by the Learned Additional Chief Metropolitan Magistrate rejecting the discharge application dated 14-7-2003 filed by the petitioner. Respondent No. 2 has filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act (for short "the Act") since the two Cheques of Rs. 27 lacs issued by the petitioner had been returned by the petitioner's bank unpaid. The only contention raised by Mr. Bhasin, learned counsel for the petitioner is that the complaint filed by respondent No. 2 under Section 138 of the Act was hopelessly time barred inasmuch as it was not filed within the time stipulated under the provisions of the Act. To be more precise according to Mr. Bhasin, the complaint under Section 138 of the Act ought to have been filed within 45 days from the date on which the cheques return memo was issued by the drawee-bank on which the cheques were drawn.

3. To appreciate the submissions of Mr. Bhasin, learned counsel for the petitioner, it would be advantageous to narrate the relevant facts and dates of the case. The cheques in question were issued by the petitioner on 20-10-2000. The respondent presented the cheques in his bank i.e. Bank of Baroda, Colaba branch, Mumbai (for short 'Respondent's bank') on 18-4-2001. The petitioner's bank i.e. Bharat Overseas Bank (for short 'Petitioners bank') returned the cheques by issuing "cheque return memo" dated 19-4-2001, for the reason that, "payment countermanded by the drawer". It was received by the respondent's bank on the very date. On 30-4-2001 respondent No. 2 had gone to his bank to enquire whether the cheques had been encashed. On that date the cheques were returned to respondent No. 2 along with the "cheque return memo" dated 19-4-2001 issued by the petitioner's bank. A notice of demand was issued on 14-5-2001 and it was received by the petitioner on 16-5-2001. The petitioner replied to the notice on 7-6-2001. The complaint came to be filed on 28-6-2001.

4. Mr. Bhasin, learned counsel for the petitioner, vehemently submitted that respondent No. 2 ought to have filed the complaint within 45 days from 19-4-2001 as contemplated under Clause (b) and (c) to the proviso to Section 138 of the Act. In other words, it would be an illegality if the date of handing over the "cheques return memo" by the respondents' bank i.e. 30-4-2001 is taken into account for reckoning the limitation. Mr. Bhasin placed heavy reliance upon the judgment of the Apex Court in Shri Ishwar Alloys Steels Ltd. v. Jayaswals NECO Ltd., 2001(3) Mh.L.J. (S.C) 1 = AIR. 2001 SC 1161 to contend that the limitation provided in Clauses (b) and (c) to the proviso to Section 138 starts to run from the date of intimation given by the drawee-bank on which the cheque is drawn and not from the date on which an intimation is given to the payee by his bank. He further submitted that the words "the bank" referred to in Clause (b) and (c) to the proviso to Section 138 of the Act should be given the same meaning as has been interpreted by the Apex Court while interpreting the words "the bank" in Clause (a) in Shri Ishwar Alloys Steels Ltd. Therefore, according to Mr. Bhasin, in the instant case, limitation would start to run from 19-4-2001, the date on which the 'cheque return memo' was issued by the petitioner's bank, and the complaint ought to have been filed on or before 20-5-2001. The complaint filed on 28-6-2001 was, therefore, hopelessly time barred and it ought to have been dismissed on that count alone. Mr. Bhasin did not raise any other contention,

5. The Apex Court in Shri Ishwar Alloys Steels Ltd. (supra) was considering the following questions :

"(a) What is meant by "the bank" as mentioned in Clause (a) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 ?

(b)     Does Such bank mean the bank of the drawer of the cheque or covers within its ambit any bank including the collecting bank of the Payee of the cheque ?
 

(c)     To which bank the cheque is to be presented for the purposes of attracting the penal provisions of Section 138 of the Act ?"
 

6. In paragraphs 8 and 9, the Apex Court while interpreting the word "a bank" and "the bank" held thus :
  

"8. The use of the words "a bank" and "the bank" in the Section is indicator of the intention of the Legislature. The former is indirect article and the latter is pre-fixed by direct article. If the Legislature intended to have the same meanings for "a bank" and "the bank, there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is pre-fixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under Section 138 is prefixed by the definite article "the". The same Section permits a person to issue a cheque on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is contemplated by "the bank" meaning thereby where the person issuing the cheque has an account. "The" is the word used before nouns with a specifying of particularising effect opposed to the indefinite or generalising force of "a" or "an". It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. "The" is always mentioned to denote particular thing or a person. "The" would, therefore, refer implicity to a specified bank and not any bank. "The bank" referred to in Clause (a) to the proviso to Section 138 of the Act would mean the drawee-bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose, favour the cheque is issued.

9. It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued. The payee of the cheque has the option to present the cheque in any bank including the collecting bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque in the drawee or payee bank on which the cheque is drawn within the period of six months from the date on which it is shown to have been issued".

7. The words "the bank" referred to in Clause (a) to the proviso to Section 138 of the Act would, thus, mean the drawee-bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of payee, in whose favour the cheque is issued. Therefore, if the bank of the drawer of the cheque and the bank where the cheque is presented for collection by the payee are different, the payee cannot claim that he presented the cheque within six months in his bank and, therefore, the drawee-bank is obliged to encash the said cheque, even if it does not reach the drawee-bank within six months from the date of issue of the cheque. However, in the present case the question raised is altogether different and keeping that in view I would like to consider whether it is possible to hold that the words "the bank" in Clause (b) to the proviso to Section 138 would mean the drawee-bank on which the cheque is drawn.

8. It would be advantageous to reproduce Clauses (a), (b) and (c) to the proviso to Section 138 of the Act for better appreciation of the submission canvassed by the learned counsel appearing for the parties.

"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".
 

9. The words "the bank" referred to in Clause (a) would mean the drawee-bank on which the cheque is drawn requiring the payee to present the cheque in his bank and see to it that it reaches the drawee-bank on which the cheque is drawn for collection within six months from the date of issue of the cheque. However, Clause (b) to the proviso to Section 138 provides that the payee or holder of the cheque can make a demand for the cheque amount by giving notice, in writing, to the drawer of the cheque within 30 days of the receipt of the information by him from "the bank" regarding the return of the cheque as unpaid. The expression "in 30 days of the receipt of information by the bank regarding return of cheque unpaid" as appear in Clause (b), in my opinion, would not mean an information or "cheque return memo" sent by the drawee-bank to the bank where the cheque is presented for collection by the payee. The drawer's bank is not obliged to inform either payee regarding return of the cheque for whatever reason or to send information or cheque return memo to the payee. The drawee-bank on which the cheque is drawn is obliged to inform the payee's bank only regarding the return of the cheque for the reasons stated in the memo. In turn the payee's bank is obliged to inform the payee regarding return of the cheque as unpaid for the reason stated in the cheque return memo. In view thereof the words "the bank" as occur in Clause (b) cannot be interpreted to mean the drawee-bank on which the cheque is drawn or given the same meaning as held by the Apex Court in the case of Shri Ishwar Alloys Steel Ltd. while interpreting the words "the bank" in Clause (a) to the proviso to Section 138 of the Act.

10. Coming to the facts of the present case, there is no dispute that the petitioner was given intimation by his bank on 30-4-2001 when he had personally gone to the bank to enquire about the cheques issued by the petitioner which he had presented for encashment. Therefore, in my opinion, the limitation of 30 days in the present case would start to run from 30-4-2001 and not from 19-4-2001, the date on which the cheque return memo was issued by the petitioner-bank. The notice of demand as contemplated under Clause (b) to the proviso to Section 138 of the Act was issued on 14-5-2001. It was received by the petitioner on 16-5-2001. The petitioner replied to the notice on 7-6-2001 and the complaint came to be filed on 28-6-2001. The petitioner ought to have made the payment of the said amount to the payee within 15 days of the receipt of the notice i.e. on or before 2-6-2001, on which date the cause of action arose as contemplated under Clause (b) of Section 142 of the Act. The cause of action, therefore, arose on 2-6-2001 and the complaint was filed on 28-6-2001. The complaint was, therefore filed within one month, as contemplated under Clause (b) of Section 142 of the Act, of the date on which the cause of action arose under Clause (c) to the proviso to Section 138 of the Act. I fail to understand from where, Mr. Bhasin, learned counsel for the petitioner gets 45 days limitation for filing complaint from the date of information or receipt of cheque return memo either from the drawee-bank or of the payee's bank. In the circumstances looking at the case from every angle it would not be possible to accept the submissions of Mr. Bhasin to hold that the complaint was barred by limitation and it ought to have been dismissed on that count. In the result this petition fails and is dismissed as such.

10-A. Certified copy expedited.

11. Parties to act on an ordinary copy of this order duly authenticated by the Sheristedar/Court stenographer of this Court.