Gujral Tours & Travels P.Ltd. vs Anup Gulati
2009 Latest Caselaw 5051 Del

13
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of Decision:- December 7, 2009

+      CRL.M.C. 948/2009

       GUJRAL TOURS & TRAVELS P.LTD.     ..... Petitioner
                    Through Mr.Munish Tyagi, Advocate.

                   versus

       ANUP GULATI                  ..... Respondent
                         Through Mr.K.Venkatraman with Mr.Manish Kumar,
                         Advocate.

       CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN


     1. Whether the Reporters of local papers

       may be allowed to see the judgment?       Yes

     2. To be referred to the Reporter or not?   Yes

     3. Whether the judgment should be           Yes
        reported in the Digest?


V.K.JAIN, J. (ORAL)

1. This is a petition under Section 482 of the Code of Criminal Procedure

against the judgment dated 27.1.2009 passed by the learned Additional

Sessions Judge whereby the revision filed by the respondent was allowed

and he was discharged in a criminal complaint filed by the petitioner

against him under Section 138 of Negotiable Instruments Act.

2. The complaint in question was filed on 30.1.1999. It was alleged in

paragraph 3 of the complaint that the respondent who had purchased air

Crlmc948.09 Page 1 tickets from the complainant - Company issued a cheque for Rs.3,65,192/-

(Rupees Three Lakh Sixty Five Thousand One Hundred and Ninety Two

only), which, when presented to the Bank for encashment, was returned

unpaid with the remarks "exceeds arrangements". It has been further

alleged that the complainant served notice dated 26.11.1998 upon the

accused and that notice was deliberately refused by him, by way of avoiding

to take delivery of notice, as per postal endorsement dated 8.12.1998 on the

registered cover. It has also been alleged in paragraph 4 of the complaint

that the notice was served on 15.12.1998 by personal delivery also.

3. Learned counsel for the respondent has referred to the decision of the

Hon'ble Supreme Court in The State of Madhya Pradesh vs. Hiralal &

Ors., JT 1996 (1) S.C. 669, where, postal remarks to the effect "not

available in the house," "House Locked" and "shop closed", were held to be

service of notice upon the respondent. In Subodh S.Salaskar vs.

Jayaprakash M. Shah, AIR 2008 SC 3086, the Hon'ble Supreme Court

held that presumption of service under Section 114 of Evidence Act would

also arise if the notice is received back with an endorsement that the party

had refused to accept it. In the present case, this is petitioner's own case in

paragraph 5 of the complaint that it had served registered notice upon the

respondent vide postal receipt No.8288. Thus, the petitioner/complainant

itself claims service upon the respondent on account of the endorsement of

the postal department on the registered cover.

Crlmc948.09 Page 2

4. In view of the provisions of Section 138(c) of Negotiable Instruments

Act, the respondent had fifteen days time from the date of receipt of the

notice, to make payment of the amount of the cheque. Therefore, the cause

of action for filing the complaint arose on 23.12.1998 when fifteen days

expired from the date on which service was effected upon the respondent

on account of refusal by him.

5. Section 142 of Negotiable Instruments Act, to the extent it is relevant,

provides that notwithstanding anything contained in the Code of Criminal

Procedure, no court shall take cognizance of any offence punishable under

Section 138, unless 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. Therefore, the prescribed period of limitation for filing the complaint

expired on 23.1.1999. The complaint having been filed on 30.1.1999 is

patently barred by limitation and the Court is precluded from taking

cognizance of the offence disclosed in the complaint, in view of the

provisions of Section 142 of Negotiable Instruments Act.

6. It was contended by learned counsel for the petitioner that since the

notice by hand was also delivered to the respondent on 15.12.1998, if

computed from that date, the cause of action arose only on 30.12.1988 and

the complaint having been filed on 30.1.1999 is within limitation. As noted

by the Hon'ble Supreme Court in Sadanandan Bhadran vs. Madhavan

Sunil Kumar, JT 1998 (6) SC 48, the cause of action in a complaint under

Crlmc948.09 Page 3 Section 142 of Negotiable Instruments Act arises only once. That cause of

action arose on 23.12.1998 when the fifteen days time available to the

respondent to make payment of the amount of the cheque expired. A fresh

service of the notice on a subsequent date would not give rise to a fresh

cause of action as far as the criminal liability under Section 138 of

Negotiable Instructions Act is concerned.

7. Moreover, if the complaint is considered on the basis of the notice

served on 15.12.1998, the respondent could not have been prosecuted

under Section 138 of Negotiable Instruments Act for the simple reason that

in that case the requisite notice was not issued within fifteen days from the

date of receipt of intimation from the Bank regarding dishonor of the

cheque. If the notice was personally delivered to the respondent on

15.12.1998, that would mean, it was still in the hand of the

complainant/petitioner till that date, meaning thereby that on the day the

stipulated period of fifteen days expired, the notice was not out of the

control of the petitioner/complainant and, therefore, was not fixed prior to

15.12.1998.

For the reasons given in the preceding paragraphs, I find no merit in

the petition and the same is, therefore, dismissed.

                                                                        V.K. JAIN,J
DECEMBER 07, 2009
'sn'

Crlmc948.09                                                                       Page 4