Dismissed

Mohd. Afzal v. The State of A.P.

Telangana HC24 Nov 2011CRLP/7296/2008

Case brief

AI extract

What is this about?

The High Court dismissed a criminal petition seeking quashing of proceedings in a cheque bounce case. The petitioner argued the complaint was filed prematurely before the expiry of the 15-day notice period. The court held that premature presentation does not bar cognizance taken after the period expires.

What did the court decide?

Criminal Petition No.7296 of 2008 dismissed; further proceedings in C.C.No.126 of 2005 allowed to continue.

Mohd. Afzal Vs The State of A.P. — Cheque Dishonour | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL PETITION No.7296 of 2008

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ORDER:

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This Criminal Petition is filed under

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Section 482 Cr.P.C., seeking quashing of further proceedings in C.C.No.126 of 2005 on the file of the learned Chief Metropolitan Magistrate, Hyderabad against the petitioner-accused.

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2. Heard both sides. Perused the record.

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3. Respondent herein filed a private complaint against the petitioner-accused alleging offence under Section 138 of the Negotiable Instruments Act ( for brevity, ‘the Act’). According to the complainant, on 17.06.2004, the accused borrowed Rs.4,50,000/- and executed an agreement and also passed a receipt on the same day and that towards discharge of the debt the accused issued 9 cheques drawn on ICICI bank, Hyderabad, out of which 4 cheques were dishonoured on the ground that the cheques were out of date and 5 cheques were bounced for the reason of insufficient funds as per the memo issued by the bank on 21.04.2005. It is stated that the complainant got issued legal notice on 26.04.2005 to the accused calling upon him to pay the amount covered by the cheques and the accused received the notice on 29.04.2005 and issued a reply, which was received by the

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complainant on 01.05.2005, wherein the accused admitted the factum of borrowal and issuance of 9 cheques but pleaded partial discharge. As the demand for payment made in the notice was not met, the complaint is filed on 12.05.2005 alleging offence under Section 138 of the Act. The learned Magistrate has taken cognizance of the same in C.C.No.126 of 2005 on 19.05.2005.

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4. The only ground on which the petitioner filed this petition for quashing further proceedings is that the complaint was filed even before the expiry of 15 days from the date of receipt of the notice and therefore there is no cause of action to file the complaint on the day it was filed.

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5. Section 142 of the Act states that no Court shall take cognizance of the offence punishable under

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Section 138 of the Act, inter alia when such complaint is made within one month of the date on which cause of action arises under Clause (C) of the Proviso to

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Section 138 of the Act. Thus, Section 142 of the Act contains a bar against taking cognizance of the offence. If the complaint is made within one month of the date of approval of the cause of action in terms of Clause (C) of Proviso to Section 138 of the Act, the said clause (C) of Proviso to Section 138 of the Act states that nothing in the Section shall apply unless the drawer of the cheque fails to make payment of the said amount of money to the

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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.

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6. Section 138 of the Act renders dishonour of the cheque inter alia on the ground of insufficient funds an offence and makes the person who issued the cheque liable for punishment. The proviso states that the Section does not apply in three circumstances and one of them stipulated in Clause (C) is that unless the drawer of the cheque fails to make payment of the money within 15 days of the receipt of a notice. The cause of action for filing the complaint would therefore arise in terms of Clause (C) on the drawer of the cheque failing to make the payment within 15 days of receipt of the notice.

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7. In the present case, notice was received by the accused on 29.04.2005. The accused had therefore 15 days’ time to make the payment and the said period expired on 13.05.2005. The complaint was however filed on 12.05.2005. As seen from the docket proceedings of the trial Court, the complaint was filed on 12.05.2005 vide USR No.2657/2005 and it was directed to be checked and put up on 13.05.2005 and accordingly the office has checked and put up a note on 13.05.2005 and the learned Magistrate has posted the matter to 17.05.2005 for recording the sworn statement of the complainant and thereafter, it is stated that cognizance was taken on

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17.05.2005 after recording the sworn statement. Thus, though the complaint was filed on 12.05.2005, cognizance of the offence was in fact taken on 17.05.2005 and by then, 15 days’ period under Clause (C) of Proviso to Section 138 of the Act for the accused to make the payment, has expired.

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8. In a decision reported in NARSINGH DAS TAPADIA v. GOVERDHAN DAS PARTANI AND ANOTHER^[1] , the apex Court held as follows:

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“Mere presentation of the complaint in the court cannot be held to mean, that its cognizance had been taken by the Magistrate. If the complaint is found to be pre-mature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed”.

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9. In the above case, the complaint was presented on 08.11.1994 and it is returned for complying with certain objections and thereafter cognizance was taken only on 17.11.1994. The High Court has considered the date of filing i.e. 08.11.1994 to be crucial and the apex Court found fault with the same and held that it was only the date on which the learned Magistrate is shown to have applied his mind and taken cognizance i.e. 17.11.1994

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that matters. In paragraph No.7, it is held as follows:

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“The compliance of clause (c) of proviso to Section 138 enables the Court to entertain a complaint. Clause (b) of Section 142 prescribes a period within which the complaint can be filed from the date of the cause of action arising under clause (c) of the proviso to Section 138. No period is prescribed before which the complaint cannot be filed, and if filed not disclosing the cause of action in terms of clause (c) of the proviso to Section 138, the Court may not take cognizance till the time the cause of action arises to the complainant”.

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10. The above decision was followed by this Court in L.K.PRABHAVATHI v. K.V.SREE RAMA MURTHY AND

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ANOTHER^[2] , wherein also the complaint was presented on the fourteenth day of receipt of the notice and cognizance was taken subsequently observing that as on the date, the complaint was filed, cause of action has not been arisen to the complainant. This Court, following the decision of the apex Court in Narsingh’s case ( 1^st cited supra), held that even if the complaint is found to be premature, it can await, maturity or it has to be returned to the complainant for filing it later and its presentation on an earlier date will not render the complaint liable to be dismissed.

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11. Learned counsel for the respondents would rely upon a decision of the Division Bench of Karnataka High

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Court, wherein also the decision of the apex Court in Narsingh’s case (1^st cited supra) was followed and it is held that the expiry of notice period contemplated under Section 138 of the Act comes into effect only on the day when the Court took cognizance.

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12. In the light of the above decision of the apex Court in Narsingh’s case (1^st cited supra), the decision cited by the learned counsel for the petitioner herein in TAMEESHWAR VAISHNAV v. RAMVISHAL GUPTA^[3] to the effect that no cognizance can be taken by the Magistrate even after expiry of the period of 15 days and such a complaint filed before expiry of 15 days from the date of service of notice is no complaint in the eye of law, is of no avail to the petitioner.

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13. In the circumstances, the ground raised by the petitioner that the complaint is premature and therefore the learned Magistrate ought not to have taken cognizance of the same as it was filed before the expiry of the period of 15 days prescribed under Clause (C) of the Act, is untenable and the further proceedings in C.C.No.126 of 2005 on the file of the learned Chief Metropolitan Magistrate, Hyderabad are not liable to be quashed on the said ground under Section 482 Cr.P.C.

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14. In the result, Criminal Petition is dismissed.

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_______________________ G.V.SEETHAPATHY, J

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24^th November, 2011. Tsy

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[1] AIR 2000 SUPREME COURT 2946

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[2] 2006 (2) ALD (CRL) 966 (AP)

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[3] 2010 (1) law herald (sc) 254

Mohd. Afzal v. The State of A.P.

Case brief

What is this about?

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Mohd. Afzal v. The State of A.P.

Case brief

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