2024 (11) TMI 197 - HC - Indian Laws

Petition challenging cheque bounce summoning order dismissed as complaint filed within limitation under Section 138 NI Act

Ashok Kumar Sharma Versus State of NCT of Delhi and Others

Delhi HC dismissed petition challenging summoning order in dishonour of cheque case under Section 138 NI Act. Court held complaint filed on 13th August ... Dishonour of Cheque - insufficient funds - challenge to summoning order - scope of interference of this Court under Section 482 of the Code - non-application of mind - whether the learned MM and learned ASJ erred in passing the summoning order and impugned revision order, respectively, against the petitioner? - HELD THAT:- It is observed that after a cheque is returned for insufficient funds in the account, a notice demanding the repayment of the due amount should be issued by the payee to the drawer within a time period of thirty (30) days from the date on which the cheque was returned. Moreover, the provision also provides the drawer with a statutory period of fifteen (15) days to repay the due amount from the date of receipt of the demand notice. However, if the drawer fails to pay the due amount within the said statutory period, then an offence under Section 138 of the NI Act is deemed to have been committed. Moreover, once the offence is made out under Section 138 of the Act, the concerned Magistrate shall take cognizance of the offence as per Section 142 of the NI Act, only if the complaint is made in writing, by payee or holder in due course of time and within one month from the date on which the cause of action arises. It is pertinent to unfold the series of events that took place between the respondent no. 2 and the petitioner, wherein the cheque presented by the respondent no. 2 was returned for insufficient funds vide the return memo dated 25th May, 2019. Thereafter, the respondent no. 2, adhering to the statutory requirement of 30 days mentioned under clause (b) of proviso to Section 138 of the NI Act, issued a legal demand notice to the petitioner for the payment of due amount on 21st June, 2019 and the same was received by the petitioner on 24th June, 2019 as per the postal tracking report on record. It is pertinent to note that the Hon’ble Supreme Court in the case of M/S. SAKETH INDIA LIMITED AND OTHERS VERSUS M/S. INDIA SECURITIES LIMITED [1999 (3) TMI 591 - SUPREME COURT] observed that the day on which the cause of action arises must be excluded in computing the limitation period for filing of the complaint as per Section 142 (1) (b) of the NI Act. In the matter at hand, the period of fifteen (15) days for repayment of the due amount expires on 9th July, 2019. Therefore, the cause of action under clause (c) of proviso to Section 138 of the NI Act arises on 10th July, 2019, which is to be excluded while calculating the limitation period of one month as envisaged under Section 142 (1) (b) of the NI Act. Therefore, according to the said provision, the complaint is to be filed on or before 10th August, 2019. However, the respondent no. 2 filed the complaint on 13th August, 2019 - It is the case of the respondent no. 2 that the limitation period of one month for filing the complaint expires on 10th August, 2019, on which the Court was not functioning and therefore, the respondent no. 2 was only able to file the complaint on the next working day i.e., 13th August, 2019. The NI Act, which categorically lays down extensive substance regarding the dishonor of the cheque, is silent with respect to the expiration of the limitation period on the day the Courts are closed. However, since the same is explicitly dealt by Section 4 of the Limitation Act, 1963, the same would be applicable in the instant case as well - given that the limitation period of one month for filing the complaint expires on 10th August, 2019, which is a holiday for the Court concerned, the same may be filed on the day when the Court concerned reopened i.e., 13th August, 2019. Coming to the issue of non-providence of sufficient reasons for summoning of the petitioner, it is observed that the respondent no. 2 filed pre-summoning evidence by way of an affidavit. It is pertinent to note that as per Section 145 of the Act, the complainant may give its evidence via an affidavit and upon satisfaction of the Court concerned, the same may be treated as an evidence for summoning the accused for any enquiry, trial or proceedings - Upon perusal of the summoning order, it is observed that the learned MM was satisfied with the sufficient causes being shown and accordingly, summons against the petitioner were issued. Therefore, the learned MM was correct in passing the summoning order against the petitioner and the learned ASJ was also right in upholding the said summoning order. This Court is of the view that the learned MM and the learned ASJ have not committed any error or illegality while passing the respective orders and therefore, this Court does not find any reasons to exercise its powers under Section 482 of the Code as the instant petition is bereft of any merits - Petition dismissed. Issues Involved:1. Whether the summoning order and the impugned revision order were passed erroneously without considering the delay in filing the complaint under Section 138 of the Negotiable Instruments Act, 1881.2. Whether the complaint was filed within the statutory period as prescribed by the NI Act.3. Whether the original legal demand notice was required to be part of the judicial record.4. Whether the learned MM and ASJ applied judicial mind while passing their respective orders.Detailed Analysis:1. Delay in Filing the Complaint:The petitioner contended that there was a four-day delay in filing the complaint under Section 138 of the NI Act, which was not condoned by the learned MM. However, the court observed that the limitation period for filing the complaint expired on a court holiday (10th August 2019), and as per Section 4 of the Limitation Act, 1963, the complaint could be filed on the next working day, which was 13th August 2019. The court found that the complaint was filed within the prescribed period, and thus, there was no delay that required condonation.2. Filing Within Statutory Period:The court examined the timeline of events and determined that the complaint was indeed filed within the statutory period. The cause of action arose on 10th July 2019, and the complaint was filed on 13th August 2019, which was within the permissible period considering the court holidays. The learned ASJ also upheld that the complaint was filed within time, and the court found no illegality in this finding.3. Original Legal Demand Notice:The petitioner argued that the original legal demand notice was not part of the judicial record, which constituted a patent illegality. However, the court noted that the original notice was indeed filed along with the complaint as per the Lower Court Record. Therefore, this contention was dismissed as unfounded.4. Application of Judicial Mind:The petitioner claimed that the learned MM did not apply judicial mind while issuing the summoning order. The court, however, found that the learned MM had considered the pre-summoning evidence submitted by the respondent via affidavit, as permitted under Section 145 of the NI Act. The learned MM was satisfied with the sufficient causes shown, leading to the issuance of summons. The learned ASJ also upheld this order, finding no error or illegality. The court concluded that both the learned MM and ASJ had applied judicial mind appropriately.Conclusion:The court concluded that both the learned MM and ASJ had acted within the bounds of law and had not committed any error or illegality in their respective orders. The inherent powers under Section 482 of the Code were not warranted in this case, as the petition lacked merit. Consequently, the petition was dismissed.