1 AFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 1382 of 2017 Judgment reserved on : 16/11/2017 Judgment delivered on : 5/12/2017 [ENTITY] S/o Shri Ramesh Chand Dang, Aged About 22 Years Proprietor - Shiv Traders, R/o Street No. 8, Plot No. 683, Shanti Nagar, Bhilai, Police Station Supela, Bhilai, Tahsil & District Durg Chhattisgarh Petitioner Versus [ENTITY] S/o Shri Jagdev Verma, Aged About 45 Years R/o Gayatri Mandir, Near Lok Bharti School, Near Durga Manch, Beside Bhatia Tailors, Ramnagar, Police Station Supela, Bhilai, District Durg Chhatisgarh Respondent
For petitioner - Smt. [ENTITY], Advocate.
For respondent - Shri [ENTITY], Advocate.
Hon'ble Shri Justice [ENTITY] CAV Order 5/12/2017
1. The present petition is against the order dated 11/08/2017 passed in [CASE NUMBER] by the 4 th Additional Sessions Judge, Durg. By such order the learned court below has affirmed the order passed by the JMFC dated 24/03/2017 in [CASE NUMBER].
2. Facts as would reflect from the order of revisional court and documents attached with this petition is that complainant/petitioner herein has filed a complaint before JMFC, Durg under [SECTION] of the [ACT] after dishonour of the cheque given by the respondent. After registration of the complaint, a preliminary objection was preferred by the accused on the ground that alleged two cheques which were issued in his favour dated 1/11/2015 and 2/11/2015 respectively were first dishonoured on 2/01/2016 by the bank. Against such dishonour first statutory notice was served on 15/01/2016 claiming the amount of dishonour of cheques. Admitedly after first dishonour and statutory notice no complaint was filed under [SECTION] of the [ACT] by the complainant. It was alleged in such objection that again the cheques were deposited in the bank in the month of February, 2016 which were dishonoured on 11/02/2016 and second notice for dishonor of the cheque was served on 18/02/2016 which was replied by the accused on 03/03/2016. Thereafter the complaint u/[SECTION] of [ACT] was filed on 11/03/2016 before the JMFC. It was therefore contended that since after presentation of the cheque for the first time in the month of January, 2016 and after dishonour thereof, since no complaint was preferred within stipulated statutory period i.e. after service of first notice, subsequent complaint on the basis of second dishonour and notice there off is not tenable as the complaint would be barred by time as the cause of action would accrue and start running after first dishonour and notice thereoff.
3. Said objection by the accused was allowed and it was held that complaint on the basis of second dishonor of cheque and notice thereof cannot be sustained when no action has been taken on the basis of the first dishonour cheque and statutory notice thereof within the statutory period.
4. Said order of dismissal was further assailed by the complainant before the revisional court of 4 th Additional Sessions Judge, Durg. The Additional Sessions Judge also affirmed the order of dismissal by holding that cause of action started running after receipt of first notice itself on 15/01/2016 and when no complaint was filed within statutory period the subsequent complaint on the basis of presentation of the cheque for 2 nd time and to get it dishonoured cannot be sustained. The revisional court mainly relied on the judgment of [PRECEDENT] in [CASE NUMBER] which was decided on 14/12/2016 and held that the complaint would not be maintainable on the basis of subsequent presentation and dishonour of cheques.
5. Learned counsel for the petitioner would submit that judgment rendered by the court below is per incuriam and the dictum which has been followed by the court that of [PRECEDENT] is based on the judgment of [PRECEDENT]. It is contended the ratio and principles of case which was relied on by revisional court stands over ruled by law laid down in case of [PRECEDENT]. Thereby order cannot be sustained and requires to be set aside by restoring the complaint.
6. Learned counsel for the respondent on the other hand supported the order of the court below on the ground that no interference is required since order is well merited which do not call for any interference.
7. Perused the documents and the order of the court below.
8. According to the complaint two cheques one of them bearing number 033604 dated 1/11/2015 for Rs.63,700/- and another cheque bearing number 093605 dated 2/11/2015 for Rs.1 lakh was given by the respondent in discharge of the alleged liability for the purchases made. The initial objection which was made shows that initially first notice was served on 15/01/2016 for dishonour of the two cheques on 2/01/2016. Admittedly, no complaint was filed on the basis of the first dishonour and the notice of default when the cause of action arose as per [SECTION] and [SECTION] of [ACT]. However after first dishonour of cheque, in the month of January, 2016, during it's validity period cheque were again deposited subsequently in the month of February and dishonour of the cheques were informed by the bank on 11/02/2016 to the complainant. Thereafter, second legal notice was issued to the accused on 18/02/2016 which was served on the respondent/accused on 19/02/2016. The deposit of cheques dated 1/11/2016 and 2/11/2016 for the second time was made within the validity period of the cheques. As the facts would suggest even after such service of notice of demand no repayment was made within a period of 15 days as such complaint was filed on 11/03/2016. So the complaint was filed within one month of accrual of cause of action u/[SECTION] read alongwith [SECTION] of the [ACT].
9. For the sake of brevity [SECTION] and [SECTION] of the [ACT] are reproduced hereunder:-
"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 for payment of any amount of 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 committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years], 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 or 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 thirty 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."
Explanation. For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.] "[SECTION]. Cognizance of offences. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) x x x
(b) such complaint is made within one month of the date on which the cause of action arises under [SECTION]: [Provided that the 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 such period.]
(c) x x x (2) x x x"
10. As has been held in case of [PRECEDENT] (supra) expression "cause of action" has to be understood to mean the bundle of facts and in case of [SECTION] of the [ACT] which is the only penal provision in a statute which uses the expression "cause of action". As against this "cause of action" is not defined anywhere in the [ACT]. Therefore, while interpreting word "cause of action" under [SECTION] of the [ACT] in relation to the commission of an offence or the institution of a complaint, reading of [SECTION] and [SECTION] of the [ACT] makes it abundantly clear that the cause of action to institute a complaint comprises the three different factual prerequisites. It was further held that right of the holder to present the cheque for encashment carries with it a corresponding obligation on the part of the drawer. The omission or the failure of the holder to institute prosecution does not, therefore, give any immunity to the drawer so long as the cheque is dishonoured within its validity period and the conditions precedent for prosecution in terms of the proviso to [SECTION] are satisfied. It was further held that so long as the cheque is valid and so long as it is dishonoured upon presentation to the bank, the holder's right to prosecute the drawer for the default committed by him remains valid and exercisable. By reason of a fresh presentation of a cheque followed by a fresh notice in terms of [SECTION] proviso clause (b), the drawer gets an extended period to make the payment and thereby benefits in terms of further opportunity to pay to avoid prosecution. Such fresh opportunity cannot help the defaulter on any juristic principle, to get a complete absolution from prosecution.
11. The Supreme Court in case of [PRECEDENT] has held as under in paras 18, 19 and 35 :-
"18.With utmost respect to the Judges who decided [ENTITY] v. Madhavan Sunil Kumar reported in [PRECEDENT] we regret our inability to fall in line with the above line of reasoning to hold that while a cheque is presented afresh the right to prosecute the drawer, if the cheque is dishonoured, is forfeited only because the previous dishonour had not resulted in immediate prosecution of the offender even when a notice under [SECTION] had been served upon the drawer. We are conscious of the fact that [ENTITY]'s case (supra) has been followed in several subsequent decisions of this Court such as in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], Tameshwar Vaishnav v. Ramvishal Gupta, (2010) 2 SCC
329."
"19. All these decisions have without disturbing or making any addition to the rationale behind the decision in [ENTITY]'s case (supra) followed the conclusion drawn in the same. We, therefore, propose to deal with the three dimensions that have been highlighted in that case while holding that successive causes of action are not within the comprehension of [SECTION] and [SECTION] of the Act."
"35. In the result, we overrule the decision in [ENTITY] v. Madhavan Sunil Kumar reported in [PRECEDENT] and hold that prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to [SECTION] of the [ACT]. The reference is answered accordingly. The appeals shall now be listed before the regular Bench for hearing and disposal in light of the observations made above."
12. In the afore-said judgment, judgment of [PRECEDENT] was considered and was held as impliedly over ruled. This court while delivering the judgement in case of [PRECEDENT] has relied on a judgement of apex court which was over ruled on that date.
13. Consequently, this court after going through the judgment in case of [PRECEDENT] (supra) is of the view that judgment rendered in case of [PRECEDENT] by this court is per incuriam. Therefore, this court in the principles as has been held in case of [PRECEDENT] can ignore the same.
14. The Supreme Court has laid down the law that the judgements which are per incuriam can be ignored and has laid down the principles as under. The principles therefore as laid down at para 18 and 19 of [PRECEDENT] are reproduced hereunder:-
"18. In this regard, we may usefully refer to a passage from [PRECEDENT], wherein [ENTITY], J. (as his Lordship then was) observed thus:
(SCC p. 652, para 42) "42 'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
At a subsequent stage of the said decision it has been observed as follows: ([PRECEDENT] "47 It is a settled rule that if a decision has been given per incuriam the court can ignore it."
19. In [PRECEDENT], while dealing with the issue of 'per incuriam', a two- Judge Bench, after referring to the dictum in [PRECEDENT] and certain passages from Halsbury's Laws of England and [PRECEDENT], had ruled thus: ([PRECEDENT], SCC p. 743, para 138) "138.The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in [PRECEDENT] which has comprehensively dealt with all the facets of anticipatory bail enumerated under [SECTION] [ACT] Consequently, judgments mentioned in paragraphs 124 and 125 of this judgment are per incuriam."
15. Therefore, this court after going through the facts and principles as laid down is of an irresistible opinion that order passed in [CASE NUMBER] decided on 14/12/2016 i.e. of [PRECEDENT] is per incuriam and consequently impugned order dated 11/08/2017 passed in [CASE NUMBER] is also rendered per incuriam and requires to be set aside. Accordingly, same is set aside. Complaint is remanded back to the JMFC for adjudication afresh on merits. The parties shall appear before the court of JMFC on 22nd January, 2018.
([ENTITY]) JUDGE gouri