AREEPLAVAN FINANCIERS THODUPUZHA v. STATE OF KERALA & SHYMOL BIJU

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941** **Crl.MC.No.7758 OF 2019(H)** **AGAINST THE ORDER IN CMP 3047/2018 DATED 17-01-2019 OF CHIEF JUDICIAL MAGISTRATE ,THODUPUZHA** ## **PETITIONER/COMPLAINANT:** **AREEPLAVAN FINANCIERS THODUPUZHA, REPRESENTED BY ITS PROPRIETOR, SIBY THOMAS, S/O. THOMAS, AGED 36 YEARS, AREEPLACKAL HOUSE, ELLUMPURAM KARA, MUTTOM VILLAGE , THODUPUZHA TALUK, IDUKKI DISTRICT** **BY ADVS. SRI.LATHEESH SEBASTIAN SMT. PRABISHA T.P.** ## **RESPONDENTS/STATE & ACCUSED:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** **2 SHYMOL BIJU, VALIYAKUZHIYIL HOUSE, VANDAMATTAM P.O, KODIKKKULAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT PIN 685 582** **R1 BY SRI AJITH MURALI-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.02.2020, THE COURT ON 18.03.2020 PASSED THE FOLLOWING:** **Crl.M.C No. 7758 of 2019** **2** ## **“C.R”** ## **R. NARAYANA PISHARADI, J ----------------------------------------Crl.M.C No. 7758 of 2019** **-----------------------------------------** Dated this the 18[th] day of March,2020 ## **O R D E R** The petitioner is the complainant in a case under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2. The petitioner filed a complaint as C.M.P No. 3047/2018 against the second respondent for an offence punishable under Section 138 of the Act. There was a delay of 33 days in filing the aforesaid complaint. The petitioner had filed application as C.M.P No. 3062/2018 for condoning the delay in filing the complaint. 3. As per Annexure-A6 order, the learned Magistrate dismissed the application for condonation of delay in filing the complaint. Annexure-A6 order reads as follows: “Complainant present. Cheque is dated 26.04.2018. It was returned dishonoured on 27.04.2018 and communicated by complainant's Bankers on 30.04.2018. Statutory notice was issued on 10.05.2018. Intimation regarding service of notice **Crl.M.C No. 7758 of 2019** **3** was given to the complainant by the postal authority on 26.06.2018. Complaint was to be filed on or before 29.06.2018. But it was filed only on 01.08.2018 and the reason shown is delay in receipt of A/D card regarding which intimation was already received on 26.06.2018. 33 days delay definitely was not caused due to the delay in receipt of the said intimation and hence the reason for delay shown is hardly convincing. Hence the petition is dismissed.” 4. Since the application for condonation of delay in filing the complaint was dismissed, as per Annexure-A7 order, the learned Magistrate also dismissed the complaint. 5. This petition is filed under Section 482 Cr.P.C by the complainant challenging the legality and propriety of Annexure-A6 order passed by the learned Magistrate. 6. Heard the learned counsel for the petitioner. Inspite of service of notice, the second respondent has not appeared. 7. Learned counsel for the petitioner submitted that, the petitioner had sent the statutory notice to the accused, as provided under clause (b) of the proviso to Section 138 of the Act. Learned counsel would contend that the complainant came to know about the service of notice on the accused only when he received the intimation from the postal department in that regard. Learned counsel would contend that there was no undue delay in filing the complaint after the **Crl.M.C No. 7758 of 2019** **4** complainant received intimation from the postal department regarding the date of service of notice on the accused and the order passed by the learned Magistrate dismissing the application for condonation of the delay in filing the complaint cannot be sustained in law. 8. The cheque is dated 26.04.2018. The complainant got intimation from the bank on 30.04.2018 regarding the dishonour of the cheque. On 10.05.2018, the complainant sent notice to the accused by registered post, demanding payment of the amount of the cheque. The complainant did not get back the acknowledgment card regarding receipt of notice by the accused. He made application to the postal department on 08.06.2018 for obtaining information regarding the service of notice on the accused. On 26.06.2018, the complainant obtained information from the postal department that the notice was served on the accused on 15.05.2018. The complaint was filed on 01.08.2018. 9. Section 142(1) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, no court shall take cognizance of any offence punishable under Section 138 of the Act, except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque, within one month of the date on which the cause of action arises under clause (c) **Crl.M.C No. 7758 of 2019** **5** of the proviso to Section 138 of the Act. Cause of action for filing the complaint arises under clause (c) of the proviso to Section 138 of the Act, when the drawer of the cheque fails to make the payment of the amount of the cheque 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 notice issued under clause (b) of the proviso to Section 138 of the Act. Therefore, the complaint has to be filed within a period of one month calculated from the date of expiry of the period of fifteen days from the date of receipt of notice by the drawer of the cheque. 10. In this context it is pertinent to note that, a complaint filed before the expiry of the period of fifteen days from the date of recipt of notice by the drawer of the cheque, is premature and it is not maintainable. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the Act unless the period of fifteen days has elapsed. Any complaint filed before the expiry of fifteen days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of law. Since a complaint filed under Section 138 of the Act before the expiry of fifteen days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of law, obviously, no cognizance of the offence can be taken **Crl.M.C No. 7758 of 2019** **6** on the basis of such complaint. Merely because at the time of taking cognizance by the Court, the period of fifteen days has expired from the date on which notice has been served on the drawer/accused, the Court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 of the Act, on a complaint filed before the expiry of fifteen days from the date of receipt of notice by the drawer of the cheque (See **Yogendra Pratap Singh v. Savitri Pandey : AIR 2015 SC 157** ). 11. Therefore, in order to file a valid complaint in the court for an offence punishable under Section 138 of the Act, it is necessary for the complainant to have knowledge regarding the date of service of the notice on the drawer of the cheque. Where the notice is sent by registered post with acknowledgment card, the knowledge of the complainant about the date of receipt of such notice by the drawer of the cheque would invariably dependent upon the action of the postal department. Very often, the sender of the notice may not get back the acknowledgment card in time. There may be cases where the complainant never gets back the acknowledgment card. If the acknowledgment card is not returned within a reasonable time, it is for the complainant to make enquiry with the postal department regarding the fate of the notice sent by him. Then, he may get **Crl.M.C No. 7758 of 2019** **7** information from the postal department about the date of service of notice on the drawer of the cheque. By that time, the period prescribed for filing the complaint may be over. 12. The complainant, in a situation as mentioned above, cannot contend that the complaint is to be filed only within a month from the date on which he got information from the postal department regarding the date of service of notice on the drawer of the cheque. The language of Section 142(1)(b) of the Act is clear and it admits of no ambiguity. The Magistrate is forbidden from taking cognizance of the offence under Section 138 of the Act, if the complaint is not filed within one month of the date on which the cause of action arose. 13. In situations as mentioned above, the provision contained in the proviso to Section 142(1)(b) of the Act, which was inserted in the Act with effect from 06.02.2003 by Act 55 of 2002, comes to the rescue of the complainant. It states that, cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within the period prescribed. 14. Condonation of delay in filing the complaint is within the discretion of the Magistrate. But, discretion shall be exercised in a sound and sober manner. The liberal principles, which guide the **Crl.M.C No. 7758 of 2019** **8** exercise of discretion in allowing applications for condonation of delay, need no reiteration here. The expression "sufficient cause for not making a complaint” in the proviso to Section 142(1)(b) of the Act shall be understood and applied in a practical, pragmatic and reasonable manner. In the absence of any deliberate inaction or negligence on the part of the complainant, the words “sufficient cause‟ shall be construed in a liberal manner, so as to advance substantial justice. Rules of limitation are not meant to destroy the right of the parties but only to ensure that they do not resort to dilatory tactics. 15. In the instant case, since the notice had been served on the accused on 15.05.2018, the complaint should have been filed on or before the date 29.06.2018. However, the complainant got knowledge regarding the date of service of notice on the accused only on 26.06.2018. It is true that he filed the complaint only on 01.08.2018. But, there may be so many circumstances which might have prevented the complainant from filing the complaint before the date 29.06.2018, that is, within three days. On getting information regarding the service of notice on the accused, he has to approach his lawyer and give necessary instructions and get the complaint drafted. Necessarily, the aforesaid steps would take some time. Learned Magistrate has not found that there was deliberate inaction or **Crl.M.C No. 7758 of 2019** **9** negligence on the part of the complainant in not filing the complaint within the time. Considering the aforesaid facts and circumstances of the case, I am of the view that the trial court has to take a fresh decision on the question of condonation of delay in filing the complaint. 16. The learned Magistrate has disposed of the application for condonation of delay in filing the complaint without issuing notice to the accused on such application. Since the application for condonation of delay was dismissed, non-issuing of notice to the accused is of no consequence. But, if the learned Magistrate had found that it is a fit case in which the delay should be condoned, he could not have done so without granting an opportunity of hearing to the accused. 17. Delay in filing a complaint for an offence under Section 138 of the Act cannot be condoned by the court, in exercise of the power under the proviso to Section 142(1)(b) of the Act, without notice to the accused and without granting him an opportunity of being heard in the matter (See **Joseph v. Philips Carbon Black Limited : AIR 2016 SC 2149** and **State of Maharashtra v. Sharadchandra Vinayak Dongre : AIR 1995 SC 231** ). 18. Consequently, the petition is allowed. Annexures A6 and A7 orders passed by the learned Magistrate are set aside. The application **Crl.M.C No. 7758 of 2019** **10** for condonation of delay (C.M.P No. 3062/2018) and also the complaint (C.M.P No. 3047/2018) are restored to the file of the court below. Learned Magistrate shall dispose of the application for condonation of delay afresh after issuing notice to the accused and granting him an opportunity of being heard. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **Crl.M.C No. 7758 of 2019** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE COMPLAINT OF THE PETITIONER IN CMP NO.3047/2018 OF CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA** - **ANNEXURE A2 TRUE COPY OF THE NOTICE OF THE PETITIONER** - **ANNEXURE A3 TRUE COPY OF THE POSTAL RECEIPT OF ISSUING ANNEXRTE A2 NOTICE** **ANNEXURE A4 TRUE COPY OF THE REPLY OF THE SUPERINTENDENT OF POST OFFICE, THODUPUZHA, DATED 26.06.2018** - **ANNEXURE A5 TRUE COPY OF THE CMP NO.3062/2018 OF CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA** - **ANNEXURE A6 TRUE COPY OF THE ORDER OF THE CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA DATED 17.01.2019 IN CMP NO.3062/2018** - **ANNEXURE A7 TRUE COPY OF THE ORDER OF THE CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA, DATED 17.01.2019 IN CMP NO.3047/2018** **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **LSN**