Case: M/S.Sil Import Export Vs. M/S.Exim Aides Silk Exporters

above book has been quoted with approval by a three-Judge Bench of this Court in State v. S.T. Chaudhary, 1996 2 SCC 428 =1 (1996) CCR 156 (SC): “It is presumed that Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time nevertheless to be construed in accordance with the need to treat it as current law.” 18. So if the notice envisaged in Clause (b) of the proviso to Section 138 was transmitted by fax it would be compliance with the legal requirement. 19. The High Courts view is that the sender of the notice must know the date when it was received by the sendee, for otherwise he would not be in a position to count the period in order to ascertain the date when cause of action has arisen. The fallacy of the above reasoning is that it erases the starting date of the period of 15 days envisaged in Clause (c). As per the said clause the starting date is the date of “the receipt of the said notice”. Once it starts, the offence is completed on the failure to pay the amount within 15 days therefrom. Cause of action would arise if the offence is committed. 20. If a different interpretation is given the absolute interdict incorporated in Section 142 of the Act that, no Court shall take cognizance of any offence unless the complaint is made within one month of the date on which the cause of action arises, would become otiose. 21. In this context the decision of a two-Judge Bench inSadanandan Bhadranv. Madhavan Sunil Kumar, 1998 (6) SCC 514 =VII (1998) SLT 157 (SC)=III (1998) CCR 238 (SC), can be referred to. A payee did not file the complaint within 45 days of sending the notice after the cheque was bounced back, but he presented the cheque once again thereafter and issued another notice. When a new cause of action arose on the strength of the second presentation of the cheque a complaint was filed by the payee on the strength of that second presentation of the cheque. This Court has stated the law in that case as follows: “Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142 (c) arises and can arise only once.” (Emphasis supplied) (para 6) 22. Learned Judges proceeded further to consider whether in a case where notice in writing was sent after the first dishonour of the cheque, the payee can once again present the cheque, get it dishonoured for the purpose of filing the complaint. Following statement of law has been clearly adumbrated by this Court in paragraph 7 thereof.: “Besides the language of Sections 138 and 142 which clearly postulates only one cause of action, there are other fom1idable impediments which negate the concept of successive causes of action. One of them is that for dishonour of one cheque, there can be only one offence and such offence is committed by the drawer immediately on his failure to make the payment within fifteen days of the receipt of the notice served in accordance with Clause (b) of the proviso to Section 138. That necessarily means that for similar failure after service of fresh notice on subsequent dishonour, the drawer cannot be liable for any offence nor can the first offence be treated as offence of the first one. At that stage, it will not be a question of waiver of the right of the payee to prosecute the drawer but of absolution of the drawer of an offence, which stands already committed by him and which cannot be committed by him again.” 23. The above view of this Court is in direct conflict with the view expressed by the Full Bench of the Kerala High Court in M/s. SKD Lakshmanan Fireworks Industries v.K.V. Sivarama Krishnan, 1995 Cr. Law Journal 1384. [In the headnote made in a volume of Supreme Court Cases which reported Sadanandan Bhadran (supra)] the Editor has noted thus: SKD Lakshmanan Fireworks Industries v. K. V. Sivarama Krishnan, (supra) is approved. This needs correction through a corrigendum because the dictum of the Full Bench in SKD Llakshmanan Fireworks Industries v. Sivarama Krishnan had been disapproved by this Court in Sadanandan Bhadrans case.24. The upshot of the discussion is, on the date when the notice sent by fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution, thereafter, due to the clear interdict contained in Section 142 of the Act.25. In this case the complainant has admitted the fact that written notice was sent by fax, Appellant has admitted its receipt on the same date. (It must be remembered that respondent has no case that fax has not reached the appellant on the same date.) The last day when the respondent could have filed the complaint was 26.7.1996. But the complaint was filed only on 8.8.1996 so the Court has no jurisdiction to take cognizance of the offence on the said complaint.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]23. The above view of this Court is in direct conflict with the view expressed by the Full Bench of the Kerala High Court in M/s. SKD Lakshmanan Fireworks Industries v.K.V. Sivarama Krishnan, 1995 Cr. Law Journal 1384. [In the headnote made in a volume of Supreme Court Cases which reported Sadanandan Bhadran (supra)] the Editor has noted thus: SKD Lakshmanan Fireworks Industries v. K. V. Sivarama Krishnan, (supra) is approved. This needs correction through a corrigendum because the dictum of the Full Bench in SKD Llakshmanan Fireworks Industries v. Sivarama Krishnan had been disapproved by this Court in Sadanandan Bhadrans case.24. The upshot of the discussion is, on the date when the notice sent by fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution, thereafter, due to the clear interdict contained in Section 142 of the Act.25. In this case the complainant has admitted the fact that written notice was sent by fax, Appellant has admitted its receipt on the same date. (It must be remembered that respondent has no case that fax has not reached the appellant on the same date.) The last day when the respondent could have filed the complaint was 26.7.1996. But the complaint was filed only on 8.8.1996 so the Court has no jurisdiction to take cognizance of the offence on the said complaint.