1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL WRIT PETITION NO.2269 OF 2009 Pradeep Kumar Pochappan Age 40 yrs., Indian Adult residing at Yesoda Nivas, Chirakkal RS PO Kannur, Kerala 670 011 ...Petitioner. v/s. 1 State of Maharashtra 2 M/s. Kotak Securities Ltd. A company incorporated under the provisions of Companies Act, 1956 having office at Bakhtawar, 1st floor, 229, Nariman Point, Mumbai 400 021 ....Respondents. Mr. Rajeev K. Pandey a/w J.S.Langekar and Ms Rallakshmi i/by PRS Legal ,advs. For the Petitioner. Mr. V.B.Konde-Deshmukh, APP For the Respondent no.1. Shri Vibhav Krishna a/w Ms Laxmi Modkekar and Shri Nilesh Masurkar i/by Juris Consillis, advs. For the R.No.2. CORAM : J.H. BHATIA, J. DATED : MARCH 23, 2011. Oral Judgment: 1 Rule. Rule made returnable forthwith. 2 Heard the learned counsel for the parties. 3 This petition is filed challenging the issuance of process under Section 138 of the Negotiable Instruments Act on the complaint filed by the respondent no.2. Even though in the petition, several grounds are taken, the learned counsel for the petitioner at the outset 2 made a statement that he would press the petition only on the ground that complaint is barred by the limitation as complaint was filed long after the cheque was dishonoured and returned by the payee bank. 4 To appreciate the contentions of the accused/petitioner, it will be useful to state the facts in brief. According to the complainant, for repayment of certain existing debts and liabilities, the accused had issued a cheque no.094369 dated 23.1.2008 for an amount of Rs.2 lac on his account maintained with Axis Bank Ltd., Kannur Branch in Kerala. Said cheque was deposited with HDFC Bank, Fort Branch, Bombay for presentation to the drawee bank. According to the complainant, on 5.8.2008, he received intimation from the HDFC, Fort Branch, Mumbai alongwith the cheque unpaid on the ground that payment was stopped by the drawer. After getting that intimation on 13.8.2008, complainant issued notice making demand of the payment. Notice was dispatched by speed-post with acknowledgment due as well as under certificate of posting on 14.8.2008. Notice was duly served but in spite of that accused failed to make the payment within stipulated period of 15 days. Thereafter, on 25th September, 2008, the complaint was filed wherein the process was issued. 5 According to the accused, he had made enquiry from his 3 banker, i.e., Axis Bank, Kannur Branch about the return of the said cheque on 16th January, 2009. Axis Bank Kunnur Branch informed the accused that the said cheque was presented through HDFC Bank, Kunnur on 22.2.2008, 22.4.2008 and lastly on 7.6.2008. On the first occasion, the cheque was returned unpaid on the ground of insufficient funds and later, on two occasions, the cheque was returned on the ground that payment was stopped. We are concerned with the last intimation. As per the said letter, lastly the said cheque was returned on 7.6.2008. The memo about the returning the cheque from the drawee bank/Axis Bank was not submitted alongwith the complaint. According to the accused, complainant must have received intimation and the memo long before 5th August, 2008 and, therefore, issuance of notice itself was beyond the period of one month and, therefore, complaint was barred by the limitation. Complainant was called upon to produce relevant documents . Complainant filed affidavit of its Deputy Manager Amit Vijay Masekar. Alongwith the affidavit, one E-Mail dated 25th June, 2008 addressed by the complainant to the HDFC Bank and the letter dated 5th August, 2008 from HDFC Bank to the complainant has been annexed. The E-Mail dated 25th June, 2008 from the complainant to the HDFC Bank reads thus,: 4 “ The foll chqs were redeposited in the month of June and hv recd the instrment long wid the drawee bks memos, however not recd are HDFC bank memos........kindly arrange for the same asap” Below the above body of the E-Mail, numbers of the 3 different cheques are mentioned. One of them is cheque in dispute. From the language of the above E-Mail, it becomes clear that before 25th June, 2008 when this E-Mail was sent, complainant had received instrument, i.e., the cheque alongwith the drawee bank’s memo which naturally speaks about the dishnour of the cheque on the ground that payment was stopped. However, the complainant told HDFC Bank that memo from the HDFC Bank was not received. Therefore, complainant requested HDFC Bank to arrange for the same. From this it is clear that drawee bank’s memo that cheque was returned unpaid, was received prior to 25.6.2008 but as the memo from its own banker HDFC Bank was not received, complainant requested to arrange the same as per the said E Mail dated 25th June, 2008. In response to that E Mail, HDFC Bank addressed a letter dated 5th August, 2008 informing complainant that said cheque was deposited on 4.6.2008 and it was returned on 9.6.2008 with endorsement “Payment stopped by the drawer”. From this it is clear that though the cheque was 5 deposited on 4.6.2008, was presented to the drawee Axis Bank, Kannur and it was returned unpaid on 9.6.2008. If this letter is read with E-Mail referred above, it appears that HDFC bank had returned original cheques alongwith memo from the drawee bank and same were received by the complainant prior to 25th June, 2008. Only memo from HDFC Bank, which was complainant’s banker, was not received. It is not clear on what date actually the complainant had received back said cheque alongwith the memo from the drawee bank, it can be presumed that it was received back on 25th June, 2008. As per the provisions of section 138 after the cheque was returned unpaid, complainant could have issued a notice to the drawer, i.e., accused making the payment of the cheque amount within 30 days of the receipt of the information from the bank. If this period of 30 days is counted from 25th June, 2008, notice could have been issued on or before 25th July, 2008. In the present case, admittedly, notice was issued on 13th August, 2008. Thus, notice was belated by 18 days beyond the period of limitation. As the notice was issued beyond the period of 30 days prescribed by clause (b) of the proviso to Section 138 mandate of section 138 was not fully complied and, therefore, cognizance of the offence under Section 138 could not be taken. 6 In view of the facts noted above, the complaint was clearly 6 barred by the limitation. 7 In the result, writ petition is allowed. Process issued against the petitioner/accused is hereby quashed. Rule made absolute accordingly. (J.H. BHATIA,J.)