1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION 2557 OF 2009 Kamal Lakhotia ) Age 58 years, Occ: Business, ) Address: M/s. Kamal Taders, 1st floor) Century Bhavan, Dr. Annie Besant ) Road, Mumbai 400 030. ).. Petitioner (Org.complainant) Vs. 1. Shri Rajesh Parekh ) Age adult, Occ: Business. ) 2) Bhaven Parekh ) Age Adult,Occ: Business. ) Both Respondent Nos. 1 and 2 ) r/a. 3rd Bld. No.2, Mangaldas ) Market Dava bazar, ) Princess Street, Mumbai 400002)..Respondents. Shri M.S.Mohite, Advocate, for the petitioner. Shri I.B.Singh,Advocate, for respondent No.2. CORAM: J.H.BHATIA,J. DATE : 30th June, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard learned Counsel for the parties. 2. To state in brief, the petitioner before this Court is the original 2 complainant. Respondent no.2, the proprietor of M/s. Impact Impex, was indebted to the complainant and to discharge the liability, two cheques of Rs. 4,30,000/- each were issued by the proprietor/authorised signatory for M/s. Impact Impex in favour of the petitioner against Union Bank of India. The cheques were presented, but they were dishonoured on 18.9.2007. On 21.9.2007, the petitioner issued a notice to the proprietor of Impact Impex demanding the money in view of the cheques being dishonoured. Inspite of service, payment was not made. on 22.10.2007, the petitioner filed a complaint against respondent No.1 showing him to be proprietor of Impact Impex on 22.10.2007. Process was issued against respondent no.1. Trial proceeded. On 31.3.2008, the petitioner was cross- examined on behalf of the accused/respondent No.1 wherein it was suggested that the accused/respondent No.1 was not the proprietor of M/s. Impact Impex nor he was signatory of the cheques. After prosecution evidence was over, statement of respondent No.1 was recorded under Section 313 Cr.P.C. He also examined himself as a defence witness. A Bank officer was also examined in defence to establish that the respondent No.1 was not the proprietor, but his father Bhaven Parekh, who is respondent No.2, was the proprietor of M/s. Impact Impex. In view of this disclosure, on 6.1.2009, the petitioner filed an application under Section 319 Cr.P.C. to implead respondent No.2 as an accused in the case. The notice was issued. That application was opposed and the application came to be 3 rejected on the ground that by the time the application was filed to implead respondent No.2 as accused, the complaint under sec.138 of Negotiable Instruments Act against him was barred by limitation, as such a complaint could be filed within one month from the date on which the cause of action had arisen. Against rejection of that application, the present petitioner preferred Criminal Revision Application No.54/2009. The Revision Application also came to be rejected. Hence, this petition. 3. The learned Counsel for the petitioner vehemently contended that the petitioner was not aware as to whether the respondent No.1 was the proprietor or it was the respondent No.2. The respondent No.2 is father of respondent no.1 and because of this, mistake was committed and the case was filed against respondent No.1 When it was disclosed that respondent No.2 was the real proprietor of M/s. Impact Impex, an application was moved for his impleading as accused. The learned Counsel contended that the application was filed within a period of month from the date on which cause of action had arisen. The cognizance of the case was taken. According to him, Court was required to take cognizance of the case and not cognizance of the accused and, therefore, respondent No.2 could be impleaded as accused pending the case. In support of this contention, the learned Counsel placed reliance upon M/s. Plywood House v. M/s. Wood Craft products 4 Ltd. &Ors. 1994 Cri.L.J.543. Further he contended that in view of the proviso to clause (b) of Section 142, cognizance of complaint may be taken even after the prescribed period if the Court is satisfied that the complainant had sufficient cause for not making complaint within such period. 4. The learned Counsel for the respondent No.2 vehemently contended that the said authority in M/s. Plywood House is not applicable and can be distinguished in view of the different facts. He contended that the complaint could be filed against respondent No.2 within one month from the date on which the cause of action had arisen. In the present case, the application was moved to make him accused about 15 months after the cause of action had arisen and, therefore, it is barred by limitation under Section 142(b) of the Negotiable Instruments Act. 5. To appreciate the rival contentions of the parties, certain provisions of section 138 and Sec. 142 need to be considered. Section 138 provides for punishment if the cheque issued for discharge of any debt or liability is dishonoured for want of sufficient amount in the account of the drawer subject to compliance of conditions in the proviso. The proviso to sec. 138 spells out that nothing contained in the Section shall appply unless the conditions mentioned in 5 clauses (a), (b) and (c) of the proviso are satisfied. Proviso (b) provides that the payee or holder in due course of the cheque has to make a demand for payment of the said amount of money by giving notice in writing to the drawer of the cheque within 30 days of the receipt of information that the cheque was dishnoured and returned as unpaid. Proviso (c) makes a provision that the section will not be applicable unless the drawer of the cheque fails to make payment to the payee or to the holder of the cheque within 15 days from the receipt of the notice. If clauses (b) and (c) are read together, it is clear that the notice making payment of money has to be issued to the drawer of the cheque and the payment is expected to be made by the drawer. If the notice is issued to the drawer and the drawer fails to make the payment, the offence is committed and it gives cause of action to file complaint under Sec.138. Section 142 provides that no Court shall take cognizance of any offence except upon a complaint, in writing,made by the payee or the holder in due course and unless such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Sec. 138. In view of clause (c) of the proviso to Sec.138, the cause of action arises when the drawer of the cheque fails to make payment within 15 days of the receipt of the said notice. Naturally, the cause of action arises against the drawer of the cheque and not against anybody else and, therefore, the complaint can also be filed against the drawer of the cheque. Exception to this normal rule will be 6 are committed by companies, including partnership firms or other associates of individuals. In that cse, not only the company who is drawer, but also the persons, who may be in charge of and responsible for the conduct of business to the company may be held guilty. However, the provisions of Sec. 141 are not applicable to the facts of the present case because M/s. Impact Impex was admittedly not a partnership firm,but it was a proprietary concern. 6. It is an admitted fact the cheques were signed by respondent No.2 as the proprietor of M/s. Impact Impex. Even though the respondent no.1 is son of respondent no.2 and possibly he might also be working along with father in the business, still he is not a proprietor nor he was the signatory of the cheque. Therefore, he could not be called a drawer of the cheque. The petitioner should have made enquiry as to the name of the proprietor and the person who had issued the cheque on behalf of M/s. Impact Impex, before filing the complaint in the Court. The cheque was issued by the respondent No.2 as proprietor. The notice was given to M/s. Impact Impex and it was received by the respondent no.2 as proprietor of the same and he failed to make payment. Therefore, cause of action arose when the respondent No.2 failed to make payment, in view of clause 3 of proviso to Sec.138. However, the complaint was filed not against M/s.Impact Impex or against respondent No.2 as proprietor. but against respondent No.1 7 showing him to be proprietor of M/s. Impact Impex. On 6.1.2009, for the first time, the application was made by the petitioner under Sec. 319 to implead the respondent No.2 as the accused. The complaint was required to be filed against him within one month from the date on which the cause of action had arisen in view of clause (b) of Sec.142. In view of this, it may be held that on 6.1.2009, when for the first time the petitioner made an application to implead respondent No.2 as accused, he filed a complaint against respondent No.2. The period of limitation will be required to be considered as on that date and it was clearly barred by limitation. 7. It is true that under the proviso to clause (b) of Sec. 142, if the Court is satisfied that there was sufficient cause for not making complaint within the period of limitation, Court may take cognizance even after the prescribed period. In the application under sec. 319 reasons were tried to be given. However, that application also disclosed that for the first time on 31.3.2008 during cross- examination of the complaintant, it was suggested to him on behalf of the accused/respondent no.1 that his father i.e. respondent No.2 was the proprietor of M/s. Impact Impex and that he had issued the cheques. Not only this, on 12.6.2008, the respondent No.1 examined himself as defence witness No.1 and deposed the above facts. On 27.6.2008, the Bank officer was examined as a 8 defence witness to prove that the respondent No.2 was the proprietor of M/s. Impact Impex. Thus, on 31.3.2008, for the first time, the petitioner had come to know that the respondent No.2 was the real proprietor. On 27.6.2008, it was confirmed even by the Bank officer that the respondent no.2 was the real proprietor. Inspite of that, the petitioner did not take any action against respondent No.2 for a period of more than six months. Therefore, it cannot be held that there were sufficient reasons for not filing the complaint against respondent No.2 within the prescribed period. Even if initially he was not aware about the real proprietor, he could move the application within one month from the date when the name of the real proprietor was disclosed, but he failed. 8. In M/s. Plywood House (supra), the cheque was issued by Managing partner of a partnership firm. The complaint was filed against the Managing Partner, but the firm was not made the accused. Later on, an application was made under Sec. 319 Cr.P.C. to implead the firm also as an accused in the case. In that reference, Mr. Justice K.T. Thomas of Kerala High Court (as His Lordship then was) held that the Court takes cognizance of the case and not of the accused under Sec. 142 and as the complaint was filed within the prescribed period and cognizance was also taken and therefore, merely because due to oversight the name of the firm was not mentioned as accused, it could have 9 been added later on. In my considered opinion, on facts, the present case is different from M/s. Plywood House and that authority is not applicable to the present case. 9. Taking into consideration the facts and the legal position as discussed above, I find no illegality or irregularity in rejection of the application and dismissal of the revision by the Sessions Court. 10. In the result, the Writ Petition stands dismissed. Rule discharged. (J.H.BHATIA,J.)