The date of issuing the cheque is immaterial for constituting the offence punishable under S. 138 of the N.I.Act.
PUNJAB & HARYANA HIGH COURT
Anil K.Mehra Vs Hans Raj
Criminal Miscellaneous No. 13631 of 1990. Date :- 29/8/1991
Jai Singh Sekhon, J.
(1) Criminal Misc. Nos. 11514-M, 13633-M and 13635-M of 1990 shall also be disposed of along with this miscellaneous petition (No. 13631-M of 1990), as these involve the sate controversy inter partes.
(2) The main controversy involved in these petitions is whether the offence under S. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) figuring in Chapter XVII, substituted vide Act 66 of 1983, which came into force w.e.f. 1/04/1989, would be deemed to have been committed on the day of draw in a cheque or on the date of dishonouring of a cheque on account of lack of sufficient funds in the accounts of the drawer as that exceeds the amount range to be paid from that account.
(3) The brief re’sume’ of facts relevant or the disposal of this petition is that Anil Kumar Mehra, Raj Kumar Mehra and Krishan Kumar Mehra accused are the partners of the firm Messrs Mehra Enterprises. This firm took loan from Hans Raj, complainant and, Anil Kumar Mehra accused- petitioner issued ten cheques for Rs. 1033.33 each in favour of Hans Raj, complainant drawn on the Central Bank of India, Sector 22-C, Chandigarh. Two other cheques were also issued by him, but these are not relevant in this case as the validity period had already expired before filing the complaint. The complainant presented all these ten cheques to the Bank for their eacashment on 11-4-1989, but all these cheques were received back on 17-4-1989 with remarks “Exceeds arrangement” vide Bank memo) dated 12-4-1989. The complainant then issued notice dated 20-4-1989 calling upon the firm of the accused to pay the amount of the cheques within 15 days of the receipt of the notice. The accused-firm received the notice on 22-4-1989, but instead of paying the amount, gave reply dated 29-4-1989 through their counsel disputing its criminal liability under S. 138 of the Act, which resulted in filing the complaint in the Court. The trial Court vide order dated 10-8-1989 summoned the accused-petitioners to face trial for the offence punishable under S. 138 of the Act. The petitioners then went in revision against that order, which was dismissed by the learned Additional Sessions Judge, Chandigarh, by holding that the provisions of S. 138 are prima facie attracted to the facts of the present case as the cheques were dishonoured after coming into force, the above referred provisions. Under these circumstances, the accused-petitioners had knocked the doors of this Court under the provisions of S. 482, of the Code of Criminal Procedure for quashing the complaint and orders of the above referred two lower Courts.
(4) In the remaining petitions the controversy is the same except that the amount and the number of cheques issued by the accused-petitioners in favour of the complainant varies.
(5) Mr. Hemant Kumar, the learned counsel for the petitioners contended that as all the cheques were admittedly issued prior to 1st of April, 1989, before the provisions of S. 138 of the. Act came into force, it cannot be said that the accused committed an offence on the date of issuing these cheques as these provisions were not then existing. In other words, his line of argument is that the date of issuing the cheque is main ingredient of the offence under S. 138 of the Act and that dishonouring of these cheques after coming into force these provisions would be of no consequence. He has further elaborated his argument contending that the formality of serving notice within 15 days of the receipt of information from the bank about dishonouring of the cheque is only to make aware the drawer of the cheque in this regard and to arrange payment within 15 days of the receipt of such notice. Reliance in this regard has been placed upon the decision of A.P. Chowdhari J. in Steel Pipe Industries Ltd. V/s. Satya Naraiyan, Mahawar, (1990) 98 (2) P.L.R. 269.
(6) Mr. Arun Jain, the learned counsel for the respondent, on the other hand, maintains that the ingredient of the offence is the disonouring of the cheque on account of lack of sufficient funds in the account of the drawer or the cheque amount being beyond the arrangement with the Bank and the failure of the drawer to make the payment despite notice by payee in this regard within 15 days of the receipt of information from the Bank. Thus he maintains that the act or date of drawing the cheque is immaterial because it is not the essential ingredient of the offence punishable under S. 138 of the Act. Reliance in this regard has been placed on Single Bench judgment of the Kerala High Court in Paramjith Singh V/s. Job, 1989 PAP 461 Kerala (Sic) as well as on the Bench of that Court in Prithviraj J. V/s. Mathew Koshy, 1991 ISJ (Banking) 312 (SIC)
(7) It is not disputed that a person can be accused of the commission of a certain offence if his act or emission is an offence according to the law prevalent. The definition of offence figuring in clause (n) of S. 2 of the Code of Criminal Procedure, 1973, reads as under :
“S. 2(n) “offence” means any act or omision made punishable by any law for the time being force and includes any act in respect of which a complaint may be made under S. 20 of the Cattle Trespass Act, 1871 (1 of 1871). ” –
Similar is the definition of offence in sub-sec. (38) of S. 3 of the General Clauses Act, 1897. It reads as under :
“S. 3(38) “offence” shall mean any act or omission made punishable by any law for the time being in force.”
Thus, there is absolutely no doubt that a person can commit an offence by an overt act or by omission against any provision of law, which is in force at that time. The matter does not rest here as the liability of a person for the commission of offence has been restricted to the then law in force by frame of the Constitution under cl. (1) of Art. 20, which reads as under:-
“20. Protection in respect of conviction for offences.- (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subject to a penalty greater than which might have been inflicted under the law in force at the time of the commission of the offence. xx xx xx xx xx xx xx xx
(8) The question then arises as to which act or omission of an accused person had been made punishable under S. 138 of the Act. The provisions of S. 138 of the Act run as under :-
“S. 138. Dishonour of cheque for insufficiency, etc. of funds in the account – Where any cheque drawn by a person on an account maintained by him with a banker, payment of any amount money to another person from out of that account for the discharge, in whole or in part of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committeed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless –
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn on within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the 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. ………………….
A bare glance of the above referred section leaves no doubt that necessary ingredients of the offence are –
(i) that the cheque is drawn on a bank for the discharge of any legally enforceable debt or other liability;
(ii) the cheque is returned by the bank unpaid;
(iii) the cheque is returned unpaid because the amount available in that account is insufficient fond making the payment of the cheque; or that the amount of the cheque exceeded the amount arranged to be paid from that account by an agreement made with the bank;
(iv) that the payee gives a notice to the drawer claiming the amount within 15 days of the receipt of the information by the bank; and
(v) the drawer fails to make payment within 15 days of the receipt of notice.
(9) Thus, the above referred break-up of the provisions of S. 138 of the Act leaves no doubt that the date of issuing the cheque is not an essential ingredient of the offence as the – wording of S. 138 lays stress on the date of dishonouring of the cheque drawn by a person in discharge of legally enforceable debt or other liability and the bank dishonours the same due to lack of insufficient funds to honour the cheque or it exceeds the amount of the drawer with the Bank. This section further enjoins upon to provide the presentation of the cheque within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier and after dishonouring the payee or holder of the cheque in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank in this regard and the drawer fails to make the payment of the amount of money to the payee or as the case may be, to the payee within 15 days of receipt of such notice.
The provisions of S. 142 of the Act limiting the scope of taking cognizance of offence provide as under :
“S. 142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1473 (2 of 1974):-
(a) no court shall take cognizance of any offence punishable under S. 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to S. 138;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under S. 138.
The perusal of clause (b) of S. 142 reproduced above, clearly shows that the limitation for filing such complaint which has been prescribed by the legislature would start running from the date from which the cause of action arises under clause (c) of the proviso to S. 138, which in turn implies that the legislature in its wisdom has made the condition figuring in cl. (c) of S. 138 of the Act sine qua non for taking cognizance of such offence. Thus by no stretch of imagination the act of issuing cheque can be considered as starting point of commission of offence. Thus, the reading of the main body of S. 138 along with the proviso as well as the provisions of S. 142 referred to above leaves no doubt that the date of issuing the cheque is immaterial for constituting the offence punishable under S. 138 of the Act.
(10) The observations of the single Bench of the Kerala High Court in Criminal M.C. No. 978 of 1989, decided on 18/10/1989 Paramjit Singh V/s. Job also support this conclusion. This view of the single Bench was endorsed by the Division Bench of the Kerala High Court in Prithviraj V/s. Mathew Koshy, 1991 ISJ (Banking) 312 (Sic).
(11) The observations of the single Bench of this Court in Satya Naraiyan Mahawar’s case (supra), relied upon by the learned counsel for the petitioner, are not, applicable to the controversy in hand as therein controversy related to the application of the provisions of S. 138 of the Act in a case where the cheque is returned unpaid by the bank on the ground of drawees stopping the payment. Thus it was held by A. P. Chowdhri, J. that the provisions of S. 138 of the Act are not applicable as that section relates only to the dishonouring of cheque on account of lack of sufficient funds in the account of the drawer or the amount of the cheque exceeds the arrangement made by the drawer with the bank.
(12) For the reasons recorded above, no interference is called for in the impugned order of the trial Court as well as the revisional Court. These petitions, therefore, fail and are hereby dismissed.