IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.2418 OF 2007. APPLICATION NO.2418 OF 2007. APPLICATION NO.2418 OF 2007. 1. Smt. Leena Chetan Gosalia. 2. Shri Chetan Himmatlal Gosalia. ..Applicants. versus 1. Sou. Kumud Jayantilal Modi. 2. The State of Maharashtra. ..Respondents. .... Mr. Meghashyam Kocharekar, for the Applicants. Mr. A.N. Wernekar, for the Respondent No.1. Ms.A.T. Jhaveri, APP, for the Respondent - State. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 21ST JULY,2008. : 21ST JULY,2008. : 21ST JULY,2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. The submissions of learned Counsel appearing for the parties were heard on the last date. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to refer to facts of the case. 2. The first Respondent is the Complainant in a complaint filed under section 138 of the Negotiable instruments Act, 1881 (hereinafter referred to as ’the said Act of 1881"). The case is made out by the first Respondent in the complaint is that the Applicant No.1 with her husband (the Applicant No.2) - 2 - used to demand financial assistance from the first Respondent or her husband. According to her case, on 1st April 2004, a sum of Rs.3 lacs was advanced by way of loan to the first Applicant. It is stated that the first Applicant had executed three separate demand promissory notes of Rs.1 lac each in favour of the first Respondent and had agreed to repay the loan amount with interest as and when demanded by the first Respondent. It is alleged that as the first Respondent demanded the repayment of the loan amount, the second Applicant (husband of the first Applicant) on behalf of the first Applicant issued a cheque dated 29th December 2005 in the sum of Rs.3 lacs in favour of the first Respondent. The said cheque was deposited by the first Respondent on 1st February 2006. In the complaint, it is stated that on 3rd February 2006, the said cheque was dishonoured on the ground that there were no sufficient funds. It is stated that the first Respondent issued notice dated 4th February 2006 through an Advocate to the Applicants. It is alleged that the said notice was not accepted by the Applicants. It is stated that one more notice was sent by the Advocate of the Applicants on 24th February 2006. It is alleged that after receiving notice, the Applicants requested the - 3 - first Respondent not to proceed against them and assured that if the cheque was re-deposited after one or two months, the same shall be encashed. According to the case of the first Respondent, as per the instructions of the second Applicant, on 10th June 2006, the cheque was re-deposited with the ICICI Bank, Dahanu Branch. However, the said cheque was dishonoured and returned with the remark "refer to the drawer". It is stated that on the dishonour of the said cheque, on 26th June 2006, the Advocate for the first Respondent issued notice to the Applicants which was accepted by the Applicants. It is alleged that as the Applicants did not comply with the said notice, the private complaint was filed. 3. The learned Magistrate issued process on the said complaint against the Applicants. Being aggrieved by the said order, a Criminal Revision Application was filed by the first Applicant which has been dismissed by the impugned judgment and order. 4. The learned Counsel appearing for the Applicants as well as the first Respondent have relied upon a decision in the case of Sadanandan - 4 - Bhadran v/s Madhavan Sunil Kumar [1998 All.M.R. (Cri.) 1613. The leaned Counsel appearing for the Applicants submitted that cause of action for filing a complaint arose when notice dated 4th February 2006 was issued by the Advocate for the first Respondent on the basis of dishonour of the cheque on 3rd February 2006. He submitted that even assuming that the said notice was not served to the Applicants, on 24th February 2006, a fresh notice was issued by the Advocate for the first Respondent enclosing therewith the earlier notice dated 4th February 2006. He submitted that thereafter the cheque was re-deposited by the first Respondent which was dishonoured on 16th June 2006 and the complaint is based on the said notice dated 26th June 2006. Relying upon the decision of the Apex Court in a case of Premchand Vijay Kumar v/s. Yashpal Singh & Anr [(2005) 4 SCC 417]. He submitted that the complaint was not maintainable. 5. The learned Counsel appearing for the first Respondent invited my attention to the relevant provisions of the said Act of 1881. He submitted that on plain reading of the scheme of section 138 of the said Act of 1881, the cause of action for filing - 5 - a complaint arises only on the accused actually receiving a notice of demand. He stated that the notice dated 4th February 2006 was not received by the Applicants and therefore, the said notice cannot be termed as a notice as contemplated under section 138 of the said Act of 1881. He pointed out that the letter dated 24th February 2006 cannot be treated as a notice as contemplated by section 138 of the said Act of 1881. He stated that the cause of action for filing the complaint arose when the cheque which was re-deposited on 10th June 2006 was dishonoured. He pointed out that the dishonoured cheque was returned on 16th June 2006 and thereafter, after serving notice dated 26th June 2006, the complaint has been properly filed. 6. He raised an objection to the maintainability of this application on the ground that only the first Applicant had filed a Revision Application before the Sessions Court which has been dismissed and the second Applicant has not filed any proceeding before the Sessions Court. He submitted that the second Applicant ought to have filed a Revision Application against the order issuing process. He also relied upon the decision of the Apex Court in the case of - 6 - M/s. Dalmia Cement (Bharat) Ltd. v/s. Galaxi Traders & Agencies Ltd. dated 19th January 2001 and invited my attention to paragraph 3 of the said decision and submitted that the said Act of 1881 has been enacted with a specific object of making a special provision for incorporating a strict liability in so far as a cheque is concerned. 7. I have carefully considered the submissions. It will be necessary to refer to a decision of the Apex Court in a case of Premchand Vijay Kumar v/s. Yashpal Singh & Anr (Supra). It will be necessary to refer to paragraphs 12 and 13 of the said judgment which read thus :- "12. As noted in Sadanandan Bhadran case once once once a notice under clause (b) of Section 138 a notice under clause (b) of Section 138 a notice under clause (b) of Section 138 of of of the the the Act is "received" by the drawer of the Act is "received" by the drawer of the Act is "received" by the drawer of the cheque, cheque, cheque, the payee or holder of the cheque the payee or holder of the cheque the payee or holder of the cheque forfeits forfeits forfeits his right to again present the his right to again present the his right to again present the cheque cheque cheque as cause of action has accrued when as cause of action has accrued when as cause of action has accrued when there there there was failure to pay the amount within was failure to pay the amount within was failure to pay the amount within the the the prescribed period and the period of prescribed period and the period of prescribed period and the period of limitation limitation limitation starts to run which cannot be starts to run which cannot be starts to run which cannot be stopped stopped stopped on on on any account. any account. any account. - 7 - 13. One of the indispensable factors to form the cause of action envisaged in Section 138 of the Act is contained in clause (b) of the proviso to that section. It involves the making of a demand 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". If no such notice is given within the said period of 15 days, no cause of action could have been created at all." (Emphasis added) It will be also necessary to consider the decision of the Apex Court in the case of Sadanandan (Supra). Paragraph 10 of the said decision reads as under :- "10. Now, the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too within one month from - 8 - the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on with the interpretation that on with the interpretation that on each each each presentation of the cheque and its presentation of the cheque and its presentation of the cheque and its dishonour dishonour dishonour a fresh right and not cause of a fresh right and not cause of a fresh right and not cause of action action action accrues in his favour. He may, accrues in his favour. He may, accrues in his favour. He may, therefore, therefore, therefore, without taking peremptory action without taking peremptory action without taking peremptory action inin in exercise of his such right under clause exercise of his such right under clause exercise of his such right under clause (b) (b) (b) of section 138, go on presenting the of section 138, go on presenting the of section 138, go on presenting the cheque cheque cheque so as to enable him to exercise such so as to enable him to exercise such so as to enable him to exercise such right right right at any point of time during the at any point of time during the at any point of time during the validity validity validity of of of the cheque. But, once he gives a the cheque. But, once he gives a the cheque. But, once he gives a notice notice notice under clause (b) of section 138 he under clause (b) of section 138 he under clause (b) of section 138 he forfeits forfeits forfeits such right for in case of failure of such right for in case of failure of such right for in case of failure of the the the drawer to pay the money within the drawer to pay the money within the drawer to pay the money within the stipulated stipulated stipulated time he would be liable for the time he would be liable for the time he would be liable for the offence offence offence and the cause of action for filing and the cause of action for filing and the cause of action for filing the the the complaint will arise. complaint will arise. complaint will arise. Needless to day, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, - 9 - expires." (Emphasis added) 8. Perusal of the notice dated 4th February 2006 shows that the notice was issued specifically under section 138 of the said Act of 1881. The notice records that in case the amount was not paid, the civil and criminal proceedings will be initiated. In the complaint filed by the first Respondent, it is asserted that the notice dated 4th February 2006 was not accepted by the accused. Perusal of notice dated 24th February 2006 shows that a copy of notice dated 4th February 2006 was forwarded alongwith the said notice and the same was received by the Applicants. According to the case of the first Respondent, after receiving notice dated 24th February 2006, the Applicants gave a suggestion that the said cheque will be encashed if it was re-deposited after one or two months and therefore, the said cheque was re-deposited. It must be stated here that in the complaint itself the first respondent has come out with the case that the notice dated 4th February 2006 was not accepted by the Applicants. Going by her own assertions made in the letter dated 24th February 2006 by the first Respondent which is annexed to the - 10 - complaint, it will have to be held that the notice dated 4th February 2006 was served to the Applicants alongwith letter dated 24th February 2006. The learned Counsel for the first Respondent laid much emphasis on the use of the word "receipt" in clause (c) of section 138 of the said Act of 1881. In the present case, the contention of the first Respondent is that the notice dated 4th February 2006 was not accepted. It is an admitted position that the communication dated 24th February 2006 enclosing therewith the notice dated 4th February 2006 was served to the Applicants. Thus, before the cheque was re-deposited on 10th June 2006, the cause of action had already accrued in favour of the first Respondent. Therefore, it is obvious that the complaint based on the subsequent dishonour on 16th June 2006 was not maintainable in view of what is held by the Apex Court in paragraph 10 of the decision in the case of Sadanandan (Supra). Therefore, the order issuing process is illegal. 9. It is true that the second Applicant did not challenge the order issuing process before the Sessions Court. However, the first Applicant had done that. It was contended that the grounds raised - 11 - in this applications were not urged before the Sessions Court. However, the first Applicant had challenged the order issuing process by filing a Revision Application. Once it is found that the process could not have been issued, the Applicants cannot be told to face the prosecution. It is well-settled that the power of this Court under section 482 of the said Code is not affected by the power of the Sessions Court under section 397 of the said Code. In any case as the complaint deserves to be dismissed, the second Applicant is also entitled to relief from this Court. 10. Accordingly, rule is made absolute in terms of prayer clause (b). [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]