Dismissed

Sudha Sachdeva & Anr. v. M/S Task Bpo

Punjab & Haryana HC21 Aug 2009CRM-M/22999/2009

Case brief

AI extract

What is this about?

The court dismissed a petition challenging a summoning order and rejection application regarding a complaint for dishonoured cheque. The court held that court closure during summer vacations provided sufficient cause to condone the limitation delay under Section 142 of the NI Act.

What did the court decide?

The petition challenging the summoning order and rejection application is dismissed; the impugned orders of the Trial Court are affirmed.

Sudha Sachdeva & Anr. Vs M/S Task Bpo — Cheque Dishonour | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Misc. No. M-22999 of 2009 (O/M). Date of Decision : August 21, 2009.

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Smt. Sudha Sachdeva w/o Shri Kamal Sachdeva, and another, both residents of H. No. 2, Old Geeta Nagar, Delhi – 110031. ...... Petitioners .

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Versus.

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M/s Task BPO ( A unit of Capital Services Ltd.) RU 386, Pitampura, New Delhi and also at 5/491, Indra Colony, Sonepat through its Director Sh. And Parkash Shah r/o HBC, Murthal Adda, Sonepat.

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..... Respondent .

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CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.

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Present:Mr. Tribhuvan Dahiya, Advocate, for the petitioners .

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AUGUSTINE GEORGE MASIH, J.

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The present petition has been preferred by the petitionersaccused, challenging herein summoning order dated 18.07.2007 (AnnexureP-1) and order dated 20.07.2009 (Annexure-P-15), vide which the application moved by the petitioners-accused for dismissal of the complaint filed under Section 138 of the Negotiable Instruments Act (hereinafter referred to as “the Act”) , by respondent-complainant on the ground that the complaint has been filed beyond the statutory period of limitation as provided under Section 142 of the Act, has been dismissed by the learned Chief Judicial Magistrate, Sonepat.

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Counsel for the petitioners-accused contends that the period of limitation provided under Section 138 of the Act having been expired and the complaint having been filed beyond the period of one month of the date

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Criminal Misc. No. M-22999 of 2009 .

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on which the cause of action arose under Clause 'c' of the proviso to Section 138 of the Act and, thus, the complaint under Section 138 of the Act, was not maintainable and deserves to be rejected on this ground alone.

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Briefly the facts of the case are that respondent, who is complainant, had filed a complaint under Section 138 of the Act that he is having dealership of Digital Signatures and the petitioners-accused had purchased the same for their clients from the respondent-complainant, vide various invoices duly confirmed by them. In consideration of the said purchases, the petitioners-accused had made payment to respondentcomplainant through cheque No. 43688, dated 09.02.2007 for a sum of Rs. 36,000/- in discharge of their liability for payment of the said purchases. The petitioners-accused promised that the said cheque will be duly honoured on presentation with the Bank. On such assurance given by the petitionersaccused, respondent-complainant presented the cheque for collection to its Banker, but the same was dis-honoured time and again. The original cheque and the dis-honoured memo were Exhibits P.1 to P.4. The respondentcomplainant issued a legal notice dated 02.05.2007 to the petitionersaccused by registered post on 05.05.2007, which was received by petitioners-accused on 10.05.2007. Despite receipt of legal notice, the petitioners-accused failed to make the payment of amount of cheque to respondent-complainant. The limitation for filing the complaint commenced from 25.05.2007, however, the complaint was filed on 02.07.2007. On this basis, an objection was taken by the petitioners-accused that the complaint was filed beyond the period of limitation prescribed under Section 142 of the Act as the period of limitation expired on 25.05.2007 and, therefore, the period of limitation for filing the complaint commenced from the said date,

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Criminal Misc. No. M-22999 of 2009 .

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which period expired on 25.06.2007, whereas the complaint has been filed on 02.07.2007, which is admitted position and, therefore, orders impugned herein i.e. summoning order dated 18.07.2007 (Annexure-P-1) and order dated 20.07.2009 (Annexure-P-15), rejecting the application of petitionersaccused, wherein they had prayed for dismissal of the complaint on the ground that it was beyond the period of limitation as prescribed under Section 142 of the Act, cannot be sustained.

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It is further contention of counsel for the petitioners-accused that in view of specific provisions of Section 142 of the Act, the Limitation Act would not be applicable as with the amendment of the provisions of Section 142 of the Act, which has brought out a substantive law, the procedural law which is the Limitation Act, would not be applicable to the proceedings under the Negotiable Instruments Act, 1881. In support of this contention, counsel for the petitioners-accused relies upon the Judgment of Hon'ble the Supreme Court in the case of Subodh S. Salaskar Versus Jayprakash M. Shah and another 2008 (3) R.C.R. (Criminal) 875. He further contends that no application under Section 142 of the Act has been filed and no reasonable explanation has been given by respondentcomplainant for not preferring the complaint within the period of limitation. His further contention is that the cheque has been issued by the petitioner No. 1 and petitioner No. 2 had only handed over the chaque and, therefore, he cannot be held liable under Section 138 of the Act. On this basis, he contends that the present petition deserves to be allowed.

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I have heard counsel for the petitioners-accused and have gone through the records of the case.

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Criminal Misc. No. M-22999 of 2009 .

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There is no dispute with regard to the fact in the present case that the period of limitation for filing the complaint was upto 26.06.2007 as the cause of action would accrue to the respondent-complainant on 26.05.2007. It is also not in dispute that as per notification dated 22.05.2007 issued by the Punjab and Haryana High Court, Chandigarh, that all the Courts of Subordinate Judges shall remain closed for civil work from 16.06.2007 to 15.07.2007 and for criminal work from 16.06.2007 to 30.06.2007. According to this notification, the Courts of the Subordinate Judges remained closed for summer vacations, however, what was permitted was urgent criminal matters and bail matters, which were to be entertained by the Duty Magistrate during summer vacations. 1^st July, 2007 was Sunday and the complaint was filed on the re-opening of criminal courts i.e. on 02.07.2007. This clearly shows and gives a reasonable explanation for not filing the complaint by the complainant within the period as has been prescribed under Section 142(b) of the Act. There was, thus, sufficient cause for the respondent-complainant for not making the complaint within such period as has been provided under Section 142(b) of the Act. The Trial Court has taken that fact into consideration and had held that sufficient cause has been shown by the respondent-complainant for not filing the complaint as per period prescribed under Section 142 of the Act. If the respondent-complainant is able to satisfy the Court with regard to sufficiency of cause for not filing the complaint within the period prescribed, separate application for the said purpose is not required to be followed. In view of the undisputed position with regard to issuance of the notification dated 22.05.2007 by the High Court of Punjab and Haryana, Chandigarh, the contention as raised by counsel for the petitioners-accused, cannot be

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accepted. The Trial Court had rightly rejected the application moved by the petitioners-accused for dismissal of the complaint as being not maintainable.

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There can be no dispute with regard to contention raised by counsel for the petitioners-accused that the Limitation Act will have no application to the proceedings under the Negotiable Instruments Act, 1881, in view of the amendment in Section 142(b) in the year, 2002, conferring discretionary powers on Courts to condone the delay. When substantive law is amended giving powers to the Courts to condone the delay, where the complaint was filed after expiry of period of limitation, it would prevail over the procedural law. That being so and further as per the judgment of Hon'ble the Supreme Court, reliance whereof has been placed by counsel for the petitioners-accused, i.e. Subodh S. Salaskar (supra), the Limitation Act would have no application to the proceedings initiated under the Negotiable Instruments Act. The discretionary powers conferred on the Courts for condonation of delay having been exercised by the Trial Court in the light of its satisfaction on the basis of notification issued by the High Court of Punjab and Haryana, Chandigarh, which notification has not been disputed by counsel for the petitioners-accused, such exercise of discretion by the Trial Court wherein the explanation and justification given by the respondent-complainant satisfies the Court that he had sufficient cause for not making the complaint within the period prescribed, cannot be faulted with.

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The next contention, which has been raised by counsel for the petitioners-accused that the petitioner No. 2 had only handed over the cheque to the respondent-complainant and the drawee of the cheque was petitioner No. 1, again cannot be accepted for the reason that they are the

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Company Secretaries and had purchased Digital Signatures for their clients from the respondent-complainant, vide various invoices, which were duly confirmed by them. Therefore, the liability was clearly culled out in the complaint itself. It may be correct that the cheque has been signed by petitioner No. 1, but it was in discharge of the liability of petitioners No. 1 and 2 of the payment for purchase of Digital Signatures from the respondentcomplainant for their clients. Further they had promised that the said cheque will be duly honoured on presentation to the Bank. It has further come in the complaint that initially cheque No. 43688 dated 09.02.2007 of U.T.I. Bank, New Delhi, issued by the accused was submitted to the Bank for encashment on 10.02.2007, but the same received back with the remarks “Insufficient Funds”. When the petitioners-accused were contacted on telephone, they had further requested the presentation of the cheque at a subsequent date, which again was presented, which was received back on 14.02.2007 with the remarks “Signatures differ”. Again, the petitionersaccused were contacted and they further requested to present the cheque in the month of April as there was some financial problem because of the ending financial year. The said cheque was again presented for the third time in the Bank and received back with the remarks “Stopped payment” as the payment was stopped by the drawer. All this shows that both the petitioners were responsible for discharge of their liability of payment for purchase of Digital Signatures from the respondent-complainant for their clients. This in any case would be dependent upon the evidence, which has to be led by the parties before the Trial Court and at this stage, no finding to this effect can be given. That being so, the contention raised by counsel for the petitioners-accused, cannot be accepted. In view of the above,

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Criminal Misc. No. M-22999 of 2009 .

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summoning order dated 18.07.2007 (Annexure-P-1) and order dated 20.07.2009 (Annexure-P-15), passed by the learned Chief Judicial Magistrate, Sonepat, do not call for any interference by this Court.

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The present petition stands dismissed in view of above.

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(AUGUSTINE GEORGE MASIH) JUDGE

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August 21, 2009. sjks.

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Whether referred to the Reporter : Yes / No.

Sudha Sachdeva & Anr. v. M/S Task Bpo

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Sudha Sachdeva & Anr. v. M/S Task Bpo

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