Case Law Details
Shiv Narain Gupta Vs State of U.P. And Anr. (Allahabad High Court)
Present Criminal Revision is preferred against the judgment and order dated 31.08.2010 passed by learned Additional Sessions Judge Court No. 3, Banda in Criminal Appeal No. 14 of 2008 (Laxmi Narain Vs. Shiv Narain Gupta and another), under section 138 of Negotiable Instruments Act,1881 Police Station Kotwali, District-Banda, whereby learned Revisional Court set aside the judgment and order of sentence passed by the learned Civil Judge (S.D.)/ C.J.M., Banda in Complaint Case No.31/1/2008 (Shiv Narain Gupta Vs Laxmi Narain) convicting and sentencing the respondent no.2 with rigorous imprisonment for two years and with fine of Rs. 2000/-.
Brief facts of the case are that revisionist instituted a complaint case against the respondent no.2 under Section 138 Negotiable Instruments Act, alleging therein that on 17.03.1996 respondents borrowed Rs. 40,000/- from the revisionist and against that amount, he gave a cheque dated 20.03.1996 of this amount to the revisionist. The aforesaid cheque was presented for payment in the bank, but it was dishonoured on account of insufficient of the amount in the account of the respondent No.2. Thereafter, a notice dated 16.08.1996 was given by the revisionist asking him to repay the amount within fifteen days, but respondent No.2 did not make the payment.
In Subodh S. Salaskar Versus Jay Prakash M. Shah and another (2008) 13 SCC 689, Hon’ble Apex Court held that:-
26. “………………….The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay. It is, therefore, a substantive provision and not a procedural one. The matter might have been different if the Magistrate could have exercised its jurisdiction either under Section 5 of the Limitation Act,196 or Section 473 of the Code of Criminal Procedure,1976. The provisions of the said Acts are not applicable. In any event, no such application for condonation of delay was filed. If the proviso appended to Clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is well settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation”.
19. On the basis of observations made above by Hon’ble Apex Court, in the aforesaid matter, it is clear that provision of Section 142 (b) of Negotiable Instruments Act, 1881 cannot be considered to be effective with retrospective effect. Therefore, learned trial court has wrongly passed the order for condontion of delay in filing the complaint by the complainant and, moreover, when the objection was raised before the revisional court, it did not consider it and has rejected the objection. Learned revisional also ignored the provision as contained under section 142(b) of the Negotiable Instruments Act, 1881 and did not give the benefit of the provision to the respondent. Therefore, it is observed that the complaint filed by the revisionist barred by limitation.
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
1. Present Criminal Revision is preferred against the judgment and order dated 31.08.2010 passed by learned Additional Sessions Judge Court No. 3, Banda in Criminal Appeal No. 14 of 2008 (Laxmi Narain Vs. Shiv Narain Gupta and another), under section 138 of Negotiable Instruments Act,1881 Police Station Kotwali, District-Banda, whereby learned Revisional Court set aside the judgment and order of sentence passed by the learned Civil Judge (S.D.)/ C.J.M., Banda in Complaint Case No.31/1/2008 (Shiv Narain Gupta Vs Laxmi Narain) convicting and sentencing the respondent no.2 with rigorous imprisonment for two years and with fine of Rs. 2000/-.
2. Brief facts of the case are that revisionist instituted a complaint case against the respondent no.2 under Section 138 Negotiable Instruments Act, alleging therein that on 17.03.1996 respondents borrowed Rs. 40,000/- from the revisionist and against that amount, he gave a cheque dated 20.03.1996 of this amount to the revisionist. The aforesaid cheque was presented for payment in the bank, but it was dishonoured on account of insufficient of the amount in the account of the respondent No.2. Thereafter, a notice dated 16.08.1996 was given by the revisionist asking him to repay the amount within fifteen days, but respondent No.2 did not make the payment.
3. Learned Trial Court vide order dated 23.02.2008 observed that respondent no. 2 has committed offence under section Section 138 Negotiable Instruments Act, and after considering the material available on record awarded punishment as aforesaid.
4. Feeling aggrieved with the aforesaid judgment and the order of the conviction, the respondent Laxmi Narayan preferred Criminal Appeal No.14 of 2008 before the Additional Session Judge, Banda, which was decided by means of impugned order dated 31.08.2010 and appeal of the respondent no.2 was allowed and judgment and order of sentence was set aside.
5. Against the impugned order dated 31.08.2010, present criminal revision has been filed.
6. Heard Sri Harsh Narayan Singh, learned counsel for the revisionist and Sri Alok Kumar Gupta, Advocate holding brief of Sri Sanjay Kumar Singh, learned counsel for the informant and perused the record.
7. Learned counsel for the revisionist vehementally urged that learned Revisional Court has committed jurisdictional error in passing the impugned order. Revisionist has proved its case with oral and documentary evidence, on which basis learned trial court convicted the respondent. Learned trial court has appreciated the material available on record rightfully. The cheque was not given by the respondents to the revisionist as collateral security against the amount borrowed by him while it was given to discharge of debt. Revisionist presented the cheque before Tulsi Gramin Bank on 12.08.1996 i.e. well within time, but it was dishonoured due to insufficiency of the fund in the account of the respondent. Upon receiving the information, revisionist served notice dated 16.08.1996 to the respondents. Respondent inspite of proper service of notice upon him, failed to comply the requirement as contained in the notice and did not pay the amount to the revisionist therefore, complaint under Section 138 Negotiable Instruments Act,1881 was filed by the revisionist.
8. Learned counsel for the revisionist further submitted that learned trial court has rightly allowed the delay condonation application of the revisionist, since sufficient reason was given by the revisionist in his application. It is also submitted that respondents moved an application to recall the order of delay condonation but it was rightly rejected by the trial court. Learned Revisional court although has observed that complaint filed by the revisionist was time barred, but it rightly held that no benefit of this fact could be given to respondents since he did not prefer any legal remedy against the order of trial court passed on his application to recall order for delay condonation.
9. It is further submitted that revisional court erroneously arrived at a conclusion that cheque was given by the respondent in the form of collateral security while the cheque was given by the respondents to discharge of debt amount taken by him.
10. Learned counsel for the revisionist referred that in the provision contemplated under section 142 (b) of the Negotiable Instruments Act, 1881 revisionist has been granted the relief of delay condonation by learned trial court and objection of respondent were rejected thereafter.
11. Per contra, learned counsel for the respondent and learned A.G.A. has submitted that when the order of delay condonation was passed by the learned trial court, the aforesaid provision was not inserted in the Act. It is further submitted that learned revisional court opined that complaint of the revisionist was time barred but erroneously it held that since respondent has not availed any legal remedy against the order of delay condonation, therefore, no benefit could be given to the respondents and assumed that the complaint of the revisionist was maintainable. Further it is submitted that cheque was given for collateral security of the amount borrowed by the respondents.
12. Section 138 of Negotiable Instruments Act, 1881 reads thus:-
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 provision 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,3[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 of other liability means a egally enforceable debt or other liability.
13. That in the case in hand on the basis of the fact, it transpires that cheque was given by the revisionist to the respondent no.2 on 20.03.1996. The aforesaid cheque was presented for clearance in Tulsi Gramin Bank on 12.08.1996 i.e. within six months as provided under Section 138 of Negotiable Instruments Act, 1881. After receiving the information from the Bank that cheque is not honoured due to in sufficient of the fund in the account of respondent no.2, the revisionist served a notice dated 16.08.1996 to the respondent no.2. The notice was given under the stipulated time as provided. But the complaint was filed under Section 138 of Negotiable Instruments Act, 1881 on 08.10.1996 by the revisionist, which ought to have been filed within one month from the date on which cause of action arose under Clause (c) of proviso of section 138 of Negotiable Instruments Act, 1881.
14. Perusal of record goes to show that during pendency of the complaint before the learned trial court, an application under Section 11-A for condonation of delay was moved on behalf of the revisionist on 06.01.1997. Thereafter, objection-paper No.14-A was filed by the respondents-opposite party on 27.03.1998 to recall the application dated 06.01.1997 with regard to condonation of delay to file a complaint beyond time by the complainant.
15. Learned trial court vide order dated 01.04.1997 rejected the objection of the respondent-opposite party and passed summoning order.
16. Learned counsel for the respondent vehmentally argued that provision of Section 142 (b) of Negotiable Instruments Act, 1881 was inserted by Act No. 55 of 2002 and it was made applicable w.e.f. 06.02.2003. Only after implementation of this provision, the court has power to take cognizance upon complaint which has filed after prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period. Learned counsel for the revisionist further argued that provision of Section142 (b) of the Negotiable Instruments Act, 1881 are not applicable with retrospective effect, therefore, the delay condoned by the learned trial court was erroneous and even when the revisional court opined that complaint was not filed within stipulated period, it would have been given benefit to the respondents-opposite party.
17. The proviso of Section 142(b) of Negotiable Instruments Act, 1881 was inserted by Act No. 55 of 2002, section 9 (w.e.f. 06.02.2003) as under:-
“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”
The provision made with insertion of the proviso empowers the Court to take cognizance of a complaint after the prescribed period, if the complainant satisfies that he had sufficient cause for not making a complaint within such period.
18. In Subodh S. Salaskar Versus Jay Prakash M. Shah and another (2008) 13 SCC 689, Hon’ble Apex Court held that:-
26. “………………….The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay. It is, therefore, a substantive provision and not a procedural one. The matter might have been different if the Magistrate could have exercised its jurisdiction either under Section 5 of the Limitation Act,196 or Section 473 of the Code of Criminal Procedure,1976. The provisions of the said Acts are not applicable. In any event, no such application for condonation of delay was filed. If the proviso appended to Clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is well settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation”.
19. On the basis of observations made above by Hon’ble Apex Court, in the aforesaid matter, it is clear that provision of Section 142 (b) of Negotiable Instruments Act, 1881 cannot be considered to be effective with retrospective effect. Therefore, learned trial court has wrongly passed the order for condontion of delay in filing the complaint by the complainant and, moreover, when the objection was raised before the revisional court, it did not consider it and has rejected the objection. Learned revisional also ignored the provision as contained under section 142(b) of the Negotiable Instruments Act, 1881 and did not give the benefit of the provision to the respondent. Therefore, it is observed that the complaint filed by the revisionist barred by limitation.
20. That so far as the nature of transaction is concerned, learned revisional court on the basis of evidence produced by the revisionist observed that cheque was given by the respondent to the revisionist for collateral security not as discharge to any of debt or other liability. Revisional Court after appreciating the material available on record rightly observed that the cheque was given as collateral security to the amount given by the revisionist to the respondents. There is no illegality in observation and conclusion drawn by the learned trial Court.
21. In view of the above, criminal revision lacks merit and, is hereby dismissed.
