Dismissed

M/S. Everest Hand Bobans and Another v. State of U.P. and Others

Allahabad HC5 Sept 2019A482/2773/2005

Case brief

AI extract

What is this about?

This court dismissed an application under Section 482 Cr.P.C. seeking quashing of NI Act proceedings for cheque dishonour. The court held that the complaint was not barred by limitation as it was filed within one month of the cause of action arising, despite a late submission by the applicant.

What did the court decide?

Application u/s 482 Cr.P.C. seeking quashing of proceedings for cheque dishonour dismissed.

M/S. Everest Hand Bobans and Another Vs State of U.P. and… — Cheque Dishonour | Allahabad HC (2019)

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Reserved on 8.7.2019 Delivered on 5.9.2019

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Court No. - 34

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Case :- APPLICATION U/S 482 No. - 2773 of 2005

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Applicant :- M/S. Everest Hand Bobans And Another Opposite Party :- State Of U.P. And Others Counsel for Applicant :- Vijaya Prakash Counsel for Opposite Party :- Govt. Advocate, Santosh Kumar Tripathi

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Hon'ble Sudhir Agarwal,J.

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Heard Sri Vijaya Prakash, learned counsel for applicants and learned AGA for State of U.P. None appeared on behalf of complainant.

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M/s Everest Hand Bobans through its Managing Director, Ratan Kaul and Ratan Kaul as applicants- 1 and 2, respectively, have filed this application under Section 482 of Code of Criminal Procedure, 1973 ( hereinafter referred to as “Cr.P.C.”) praying for quashing entire proceedings of Case No. 7073 of 2002 pending in the Court of Additional Chief Judicial Magistrate, Court No. 5, Ghaziabad as well as summoning order dated 01.02.2003 passed by aforesaid Court, summoning applicant-2 Ratan Kaul for an offence under Section 138 of Negotiable Instruments Act, 1881 ( hereinafter referred to as “Act, 1881” ). Court below has also rejected objection filed by applicants for discharge under Section 204 Cr.P.C. vide order dated 26.03.2004 and said order has also been challenged.

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Further, applicants also preferred Criminal Revision No. 143 of 2004 against summoning order as well as order dated 26.03.2004. Said revision has been rejected by Sri Prabhu Ji, Additional Sessions Judge, Court No. 9, Ghaziabad vide order dated 17.02.2005 but this order of Revisional Court is not under

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challenge.

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Respondents-3, M/s New Tech Security and Intelligence Service (Private) Ltd. through its Managing Director, Sri R.A. Singh filed a complaint before Additional Chief Judicial Magistrate, Court No. 5, Ghaziabad registered as Complaint Case No. 7073 of 2002 under Section 138 of Act, 1881 alleging that security personnel were supplied to respondent-Company by complainant and payment of their wages used to be made through cheque. A cheque bearing no. 0076929 towards partial payment of Rs. 5,000/- dated 05.10.2002, payable at Central Bank of India, Ghaziabad, was issued to Complainant. Said cheque was presented by Complainant to Syndicate Bank, Raj Nagar, Ghaziabad but it was dishonoured on 07.10.2002. Complainant received its information on 09.10.2002 from its Banker. Thereafter, Complainant sent a notice dated 23.10.2002 to applicants raising demand of payment. Applicants sent a letter dated 24.10.2002 wherein it was mentioned that a bank draft of Rs. 5,000/- is enclosed with the letter but as a matter of fact, no such bank draft was enclosed nor detail of bank draft was mentioned in the said letter. Complainant's employee immediately informed accused-applicants telephonically about dishonouring of cheque but without replying the same, they (accused-applicants) dis-connected the telephone. On 01.11.2002, Complainant reached office of accused-applicants personally but accused-applicants refused to meet him. Since despite receipt of notice, sent on 23.10.2002, which was served upon applicants on 24.10.2002, no payment was made within fifteen days, hence, a complaint was filed under Section 138 of Act, 1881 on 13.11.2002 in the Court of Magistrate concerned. Magistrate after registering complaint on 13.11.2002, recorded

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statement of Complainant under Section 200 Cr.P.C. and witnesses' statement under Section 202 Cr.P.C. were recorded on 25.11.2002. Thereafter on 01.02.2003, accused-applicant-2 Ratan Kaul was summoned for an offence under Section 138 of Act, 1881.

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Learned counsel for applicants submitted that notice admittedly was sent on 23.10.2002 and 15 days period expired on 07.11.2002 thereafter complaint could have been filed within one month but it has been filed thereafter, hence, proceedings are barred by Section 142(1)(b) of Act, 1881.

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The submission is thoroughly misconceived. Complainant has specifically stated that information of dishonouring of cheque was received by him on 09.10.2002. Thereafter he (Complainant) sent notice on 23.10.2002 which was served upon applicants on 24.10.2002. The period of 15 days from 24.10.2002 would expire on 08.11.2002. Complaint has been filed on 13.11.2002 and it has been registered on the same day as is evident from the copy of order-sheet placed on record.

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For taking cognizance under Section 138 of Act, 1881, Court requires the existence of following facts:-

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(i) Cheque must be presented within six months from the date on which it was drawn or within period of its validity whichever is earlier.

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(ii) A demand for payment of amount of money of the cheque should be made by giving a notice to the drawer of the cheque within thirty days of the receipt of information from the bank regarding return of cheque as on date.

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(iii) The drawer of cheque must have committed default in making payment within fifteen days of the receipt of said

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notice.

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All these conditions are duly satisfied in the case in hand, inasmuch as, cheque dated 05.10.2002 was presented in the Bank; it was dishonoured as per information given on 09.10.2002 i.e. within four days of the date of cheque; time to give notice is thirty days but in the present case, notice was sent on 23.10.2002 and the same was served upon applicants on 24.10.2002 i.e. within thirty days; Fifteen days from the date of receipt of notice contemplating payment by drawer of cheque i.e. applicants expired on 08.11.2002 commencing from 24.10.2002 and within one week thereafter i.e. on 13.11.2002, complaint has been filed.

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Section 142(1)(b) of Act, 1881 contemplates that complaint should have been made within one month of the date on which cause of action arose under Clause (c) of proviso to Section 138 of Act, 1881. Further there is a Proviso inserted in Section 142 (1)(b) of Act, 1881 by Amendment Act 55 of 2002 with effect from 06.02.2003 which empowers the Court to take cognizance if complaint is filed after one month and if it is satisfied that there was sufficient cause for not making a complaint within the prescribed period. There is no complete bar if complaint is made after thirty days but in the present case that situation has not arisen for the reason that complaint was filed on 13.11.2002 itself and registered on the same date. Therefore, this application is thoroughly misconceived. It cannot be said that complaint is barred by Section 142(1)(b) of Act, 1881.

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In view of above, application is dismissed.

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Order Date :- 5.9.2019 Siddhant Sahu

M/S. Everest Hand Bobans and Another v. State of U.P. and Others

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M/S. Everest Hand Bobans and Another v. State of U.P. and Others

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