Bombay High Court
Venkatrao Govindrao Shahpurwad vs Hardeepsingh Zailhasingh Padda & ... on 6 December, 2016
Bench: V.K. Jadhav
1 CRI APPLN 3355 &
3356.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3355 OF 2005
1. Venkatrao S/o Govindrao Shahpurwad,
Age. Major, Occ. Cook, R/o. Anand Nagar
Road, Anandnagar, Nanded.
..APPLICANT..
(Orig Accused )
VERSUS
1. Hardeepsing S/o Zailhasingh Padda,
Age. 48 years, Occ. Business,
R/o. Village Kautha,
Tq. & Dist. Nanded. Orig. complainant
2. State of Maharashtra,
Through Additional Government Pleader
Mumbai High Court, Bench at Aurangabad.
..RESPONDENTS..
WITH
CRIMINAL APPLICATION NO. 3356 OF 2005
1. Venkatrao S/o Govindrao Shahpurwad,
Age. Major, Occ. Cook, R/o. Anand Nagar
Road, Anandnagar, Nanded.
..APPLICANT..
(Orig Accused )
VERSUS
1. Hardeepsing S/o Zailhasingh Padda,
Age. 48 years, Occ. Business,
R/o. Village Kautha,
Tq. & Dist. Nanded. Orig. complainant
2. State of Maharashtra,
Through Additional Government Pleader
Mumbai High Court, Bench at Aurangabad.
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2 CRI APPLN 3355 &
3356.2005.odt
..RESPONDENTS..
...
Advocate for Applicant: Mr Shailendra S. Gangakhedkar
Respondent No.1 - absent.
APP for Respondent No.2: S.W. Munde
...
CORAM : V.K. JADHAV, J.
Dated: December 06, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the order passed by the
Judicial Magistrate First Class, Court No.3, Nanded
dated 2.11.2004 below Exh.1 in SCC No.2493/2004 and
the order dated 2.11.2004 passed by the Judicial
Magistrate First Class, Court No.3, Nanded in SCC
No.2494/2004, thereby issuing process against the
present applicant in both the cases under section 138 of
the Negotiable Instruments, 1881 (for short hereinafter
referred to as 'N.I.Act') and the common order dated
11.8.2005 passed by the 5th Judicial Magistrate First
Class, Nanded below Exh.19 in SCC No.2493/2004 and
below Exh.18 in SCC No.2494/2004 thereby rejecting
the aforesaid applications filed for recalling the order of
issuance of process and further the learned Adhoc
Additional Sessions Judge, Nanded has refused to
3 CRI APPLN 3355 &
3356.2005.odt
interfere in the order of rejection of the application for
recalling the order of issue process in terms of the ratio
laid down by the Supreme Court in the case of Adalat
Prasad Vs. Rooplal Jindal", the original accused
approached to this Court by filing present criminal
applications.
2. The learned counsel for the applicant submits
that, in both the cases, respondent no.1-original
complainant alleged that the applicant-accused had
issued a cheque of certain amount dated 15.7.2004 and
16.7.2004 respectively, however, on presentation of the
said cheques in the bank, the said cheque came to be
returned with the remark of "funds insufficient".
Consequently, the respondent-complainant had issued a
legal notice to the applicant-accused on 13.8.2004.
Said notice came to be returned on 19.8.2004 with the
remark that the person has left the house. Said legal
notice in respect of the dishonour of the cheque has
been issued on the correct address and therefore, there
would be a deemed service of the notice on applicant-
accused on 19.8.2004. The learned counsel submits
4 CRI APPLN 3355 &
3356.2005.odt
that, after expiry of 15 days as contemplated under
section 138 clause (c) of the N.I.Act, in view of the
provisions of Section 142 (b) the respondent-
complainant had to file the complaint on or before
2.10.2004. However, the respondent-complainant had
filed two separate complaints bearing S.C.C.
No.2493/2004 and 2494/2004 before the learned
Magistrate First Class on 7.10.2004. No application was
filed for condonation of delay. The learned Magistrate
has not considered the same and mechanically issued
the order of process against the applicant-accused.
3. None present for the respondent no.1-original
complainant in both the cases.
4. I have also heard the learned APP for the
respondent State.
5. It appears that the complaint is not filed within a
period of one month of the date on which the cause of
action arose under clause c to the proviso to Section 138
of the N.I.Act. Section 138 (c) which is relevant for the
5 CRI APPLN 3355 &
3356.2005.odt
present discussion reads as under :-
"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
extended 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)...................
(b)...................
(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.
Explanation.- For the purposes of this
section, "debt or other liability" means a
legally enforceable debt or other liability."
6 CRI APPLN 3355 &
3356.2005.odt
6. In terms of provisions of Section 142 of the N.I.
Act, the Court is not empowered to take cognizance of
the offence if there is non-compliance of clause 'b' of
Section 142 of N.I.Act. Said clause (b) of Section 142
sub section (1) which is relevant for the present
discussion is reproduced herein below :-
"142. Cognizance of offences.-
(1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of
1974),-
(a) 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;
(b) 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:
[Provided that the cognizance of a complaint
may be taken by the Court after the
prescribed period , if the complainant
satisfies the Court that he had sufficient
cause for not making a complaint within
such period;]
(c)......
(2)......
(a)......
(b)......
Explanation.-. For the purposes of clause
(a), where a cheque is delivered for collection
7 CRI APPLN 3355 &
3356.2005.odt
at any branch of the bank of the payee or
holder in due course, then, the cheque shall
be deemed to have been delivered to the
branch of the bank in which the payee or
holder in due course, as the case may be,
maintains the account.
7. In view of the above provisions, the respondent
complainant ought to have filed the complaint on
2.10.2004 i.e. within a period of one month of the date
on which cause of action arises under clause (c) of
Section 138 of N.I. Act, as aforesaid.
8. In the instant case, cause of action arose on
3.9.2004 and as such, the complaint ought to have been
filed on or before 2.10.2004. However, the Court is not
precluded from taking cognizance of the complaint in
terms of the provisions of clause 'b' to sub section (1) of
Section 142 of the N.I. Act if the complainant satisfies
the Court that he had sufficient cause for not making a
complaint within such period.
9. In the instant case, respondent-complainant has
not bothered to file any application alongwith the
complaint explaining about the delay to the satisfaction
8 CRI APPLN 3355 &
3356.2005.odt
of the Magistrate.
10. In view of this, cognizance taken by the Magistrate
of the complaint filed by the respondent-complainant
and issuing process thereafter against the applicant-
accused is liable to be quashed and set aside. Hence,
following order.
ig O R D E R
I. Both the Criminal Application Nos.
3355/2005 and 3356/2005 are hereby
allowed in terms of prayer clause 'C'.
II. Rule is made absolute in above terms.
III. Criminal Applications accordingly disposed
of.
( V.K. JADHAV, J. )
....
aaa/-
