Kailash Engineers vs Auto Pins (I) Ltd.
2003 Latest Caselaw 381 Del

JUDGMENT

O.P. Dwivedi, J.

1. This revision is directed against the order dated 6.8.1999 passed by learned Metropolitan Magistrate whereby the complaint filed by the petitioner Under Section 138, 141 and 142 of the Negotiable Instruments Act, 1881 (for short the "Act") was dismissed as statutory notice was not given with 15 days from the dishonour of cheque.

2. Briefly stated, facts leading to this revision are that on 6.3.1999 petitioner filed complaint Under Section 138, 141 and 142 of the Act against the respondent alleging therein that respondent had purchased some material i.e. 10 pairs of main bearing on 18.12.1998 for which complainant raised its bill No. 647 dated 18.12.1998 amounting to Rs. 34,320/-. Respondent issued post dated cheque on 18.12.1998 bearing No. 379392 dated 28.12.1998 for Rs. 34,320/- against the said purchase. The cheque was presented for encashment on 29.12.1998 but the same was dishonoured by Banker's Memo dated 2.1.1999. The petitioner wrote a demand tetter dated 2.1.1999 but of no avail. Petitioner served a legal notice dated 18.1.1999 (17.1.1999 being Sunday) to the accused but the payment was not made. Ultimately, the petitioner filed the said complaint on 6.3.1999. After recording preliminary evidence, the learned Metropolitan Magistrate passed impugned order dated 6.8.1999 dismissing the complaint because the legal notice dated 18.1.1999 was not served within 15 days from the receipt of information regarding return of the cheque unpaid. In coming to this conclusion, the learned Metropolitan Magistrate relied on the decision of this Court O.P. Chirania v. Dir. of Lotteries, , wherein it was held that period of limitation of one month prescribed under Section 142 of the Act for taking cognizance of a complaint under Section 138 of the Act cannot be extended and delay in filing of complaint cannot be condoned. It was held that Section 142 of the Act opens with non obstante clause and therefore prevailed over the provisions of Section 473, Cr.P.C.. In an earlier decision of this Court in the case of Ram Richpal Gupta v. DCM Shriram Consolidated Ltd., , another single bench of this Court has taken the view that the delay in filing complaint under Section 142 of the Act can be condoned, was also taken note of. The contention of the learned counsel for the petitioner was that if delay in filing the complaint can be condoned, the delay in giving legal notice can also be condoned. As against this submission of the learned counsel for the respondent was that delay in sending legal notice within 15 days' in incurable and the same cannot be condoned by the Court.

3. I have learned counsel for the parties and perused the record.

4. In the case of Ram Richpal Gupta (Supra), a learned Single Judge of this Court has repelled the contention that in view of non-obstante clause in Section 142 of the Act the application of Cr.P.C. to such proceedings under the Act is completely barred. It was held by Vijendra Jain, J. that Section 142 of the Act excludes the application of Cr.P.C. only in respect of those matters which are provided under Sub-section (a)(b)(c) of Section 142 of the Act but that does not

moan that applicability of Cr.P.C. is excluded totally by virtue of the non-obstante clause of Section 142 of the Act. As against this the view taken by Anil Dev Singh, J. in the case of O.P. Chirania (Supra) was that in view of the non-obstante clause of Section 142 of the Act the delay in filing the complaint under Section 138 of the Act cannot be condoned. None of these decision dealt with the question of extension of the period for service of legal notice as prescribed under Section 138(b) of the Act. So none of these decisions can be taken to be an authority for or against the proposition that the period prescribed under Section 138(b) of the Act for serving legal notice can be extended.

5. In a later decision, in the case of S.V. Muthye v. State and Anr., , K.S. Gupta, J. has clearly taken the view that in the matter of condoning delay in issuing notice within the prescribed period of 15 days neither Section 473, Cr.P.C. nor Section 5 of Limitation Act would apply nor such a delay can be legally condoned. 1 respectfully agree with the view taken by Gupta, J. When any Act or enactment prescribed a particular period for doing of any act, the said period cannot be extended by the Court unless the said Act or enactment contains a provision empowering the Court to extend such period in appropriate case.

In an appropriate case, court can extend period of limitation for initiating any proceedings in the Court. It cannot extend the period prescribed by law for the purpose of doing some acts before the parties could take recourse to the Court of law. In the matter of serving a legal notice under Section 138(b) of the Act, the Court does not come in the picture. The drawee/holder of the cheque which has been dishonoured has to serve a notice within 15 days from the date of knowledge of dishonouring of the cheque. This notice is not to be issued or served through the instrumentality of the Court so the question of court extending the said period of 15 days does not arise. That would amount to re-writing the Statute. The Act creates mutual rights and obligations between the drawer and drawee of the cheque. When the cheque is dishonoured, the drawee has to serve legal notice within 15 days and the drawer has to pay this amount within 15 days of the receipt of demand notice. Just as the court cannot extend the time prescribed for payment of amount due by the drawer, it cannot extend the time prescribed for service of legal notice by the drawee/holder of cheque. If the parties fail to carry out their obligations under the Act in this regard they have to suffer consequences thereof.

Court does not come into picture at this stage, so the question of condoning the delay, in serving demand notice within 15 days or in payment of amount due within 15 days of service of demand notice does not arise.

6. In the present case the intimation regarding dishonour of cheque was admittedly received by the petitioner on 2.1.1999 so the demand notice should have been sent by 17.1.99 which was not done in this case. Thus one of the essential ingredients of the offence under Section 138 of the Act is not made out in this case. Impugned order does not suffer from any legal infirmity. This revision, therefore, fails and is hereby dismissed.