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2018 (8) TMI 1295
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....plied with, since the complaint was filed and cognizance was taken within a period of 15 days, even before the cause of action arose for filing the complaint. The learned Counsel for the petitioner further submitted that no specific averment has been made in the complaint to the effect that the petitioner failed to pay the cheque amount within 15 days from the date of receipt of the notice. This according to the learned Counsel for the petitioner is an essential ingredient, which has to be mentioned in the complaint and in the absence of the same, the complaint is liable to be quashed. 3.The learned Counsel for the petitioner relied upon the following judgments to substantiate his arguments: 1.Ms.Nirmal Ahluvalia Vs.Ms.O.Meenakshi, reported in (2011) 2 MLJ (Crl), 2.Capt.D.Karunakar Vs Lt.Cl.A.C.Viswanathan and two others, reported in 2007-2.L.W(Crl) 806, 3.Y.Banumoorthy Vs.R.Janakiraman, reported in 2006 (1) MWN (Cr) (DCC) 78, 4.Shanku Concretes Pvt.Ltd and others Vs. State of Gujarat and another, reported in 2000 CRI.L.J.1988, 5.Dr.Kanchana Kamalanathan Vs. Nagaraj, reported in 1994-L.W.(Crl) 356, 6.M.Alangaram and Anr Vs. P....
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....pondent relied upon the following judgment to substantiate his arguments: Sagaya Arokiya Raj Vs. Ganesh Kumar, reported in (2017) 1 MLJ (Crl) 226. 5.The learned Counsel for the petitioner in response to the arguments put forth by the learned Counsel for the respondent, would submit that even in case of denial of liability, the payee has to necessarily wait for 15 days and only thereafter the cause of action will arise to file the complaint. He further submitted that the intention of the legislature must be understood from the very language used in the provision and if the legislature has not specifically provided for contingency, where the drawer has given a reply and denied the liability, this Court cannot read such contingency into the plain language used by the legislature in the said provision. 6.This Court has carefully considered the submission made by either side and also the judgments that have been cited on either side in order to substantiate their arguments. 7.In this case, there is no dispute with regard to the facts that has been enumerated herein above with regard to the issuance of notice, reply given for the said notice, complaint filed and cognizance ta....
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....drawer 'fails' to make payment within the stipulated time, whatever be the cause for such failure. 12.The first 12 judgments that have been cited by the learned Counsel for the petitioner, does not deal with the case, where the accused denied the liability and refuses to pay the cheque amount. In all the cases, the complaint has been filed within a period of 15 days provided under Section 138 (c) of the Act, without allowing the statutory period of 15 days provided for the accused to pay the cheque amount. On those facts, the Courts have held that the complaint is not maintainable by virtue of non compliance of Section 138(c) of the Act, since cause of action for filing the complaint has not arisen. There is no quarrel with the proposition of law. 13.However, in the present case, the factual scenario is different and here is a case, where the drawer of the cheque has denied the liability in her reply notice. The question is, whether on such denial, cause of action arose to file a complaint for the offence under Section 138 of the Negotiable instruments Act, dehors, the proviso (c) to Section 138. 14.This Court had an occasion to consider the same issue, in the case of Saga....
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....annot invalidate the cause of action itself, that arises out of the denial of payment by the drawer, even after the receipt of the statutory notice issued under proviso (b) to Section 138 of the Negotiable Instruments Act. Hence, the complaint filed after the denial by the drawer before the expiry of the 15 days from the date of receipt of the statutory notice cannot be stated as premature and, therefore, the order dated August 25, 1994, in Crl. M. P. No. 2077 of 1994 holding the complaint in C. C. No. 2210 of 1993 as premature is hereby set aside.' 7. The decisions relied on by the learned counsel for the petitioner, if understood in the context of the facts of this case, cannot be said that there is no cause of action on the date of filing of the complaint. Hence, the contention that the complaint is not maintainable has to be rejected.' 15.It is also relevant to take not of the judgment in the case of I.S.P.Solutions India (P) Ltd & others Vs. Kuppuraj, reported in 2006 (2) MWN (Cr) (DCC) 18. The facts in the said judgment are captured at paragraph 4 and 6, which are extracted hereunder: '4. It is further submitted in the complaint that the cheque, when pres....
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....dent, in which the respondent was given 15 days' time to repay the amount. The respondent has received the notice on March 8, 1993, and sent a reply on March 11, 1993, containing false averments. Even after the expiry of 15 days from the date of receipt of the notice, the respondent did not pay the amount. Thus, he has committed an offence under section 138 of the Negotiable Instruments Act and hence the complaint.' 19.The discussion and the ratio in the said judgment are found at paragraphs 5 and 6, which are extracted hereunder: '5.There is apparent conflict of views in the judgment 5. In para 7 of the complaint, it is stated that the cheque was re-presented on February 17, 1993, and it was returned on February 22, 1993, with an endorsement of "insufficient of balance". The respondent had issued a notice on March 6, 1993. It was received by the petitioner on March 8, 1993. He sent a reply on March 11, 1993, containing false averments. His complaint was filed on April 22, 1993. On the above facts, Mr. P. Kulandaivelu would submit that so far as the accused is concerned, the offence was committed on March 11, 1993, when he sent a reply denying the allegations. He wo....
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....n would arise only after the expiry of fifteen days of the receipt of the notice. It does not say that it would arise if there was a denial earlier, on the date of such denial. Moreover, even after sending notice, denying liability to pay the amount, within 15 days of receipt of the notice, the accused, can at any time change his mind and make payment and avoid prosecution. So, unless and until the period expires, the cause of action does not arise, for laying the complaint. Taking that view of the Matter, I am unable to accept the submission made by Mr. P. Kulandaivelu that the cause of action would arise from the very date of denial of the accused. 6. Mr. P. Kulandaivelu would refer to section 469(a) which reads as follows : "469. Commencement of the period of limitation. - (1) The period of limitation, in relation to an offender, shall commence, (a) on the date of the offence; or. . ." and that in the instant case, the offence would be deemed to have been committed on the date of the denial itself. I am unable to accept this submission because of the clear language of clause (c) of the proviso to section 138 and clause (b) of the proviso to section 142....