Allahabad High Court: In a petition filed against the order passed under Section 138 of the Negotiable Instruments Act, 1881, on the question of limitation, in terms of which the petitioner has been summoned, Dr. Yogendra Kumar Srivastava, J while upholding the summoning order and the order passed in the revision, said that the complaint having been filed on 20-02-2020, was within the prescribed period of one month as per clause (b) of Section 138 (1), from the date on which the cause of action arose on 23-01-2020, and accordingly the court below would be within its right to take cognizance of the offence, as provided under Section 142.
A cheque drawn by the petitioner, upon being presented by the respondent 2, on 18-09-2019, was returned unpaid by the bank, along with a return memo dated 17-12-2019, with a remark “Amount Insufficient”. Upon receipt of the aforesaid return memo, respondent 2 gave a notice dated 04-01-2020 to the petitioner regarding return of the cheque.
The petitioner contended that the limitation would run from 08-01-2020 i.e. the date when the legal notice was received by the petitioner, and the complaint having been filed on 20-02-2020, was beyond time, and was liable to be rejected.
The respondent submitted that the complaint having been filed within one month from the date when the cause of action arose, the same was within the prescribed period of limitation, and therefore, the orders passed by the courts below cannot be faulted on the question of limitation.
The Court took note of Sections 138 and 142 of the NI Act, and said that a complaint under Section 138 can be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138, which happens as soon as the drawer of the cheque fails to make payment of the cheque amount to the payee or to the holder in due course of the cheque, within fifteen days of the receipt of the notice required to be sent in terms of clause (b) of the proviso to Section 138 of the N.I. Act.
It further said that the cause of action having once arisen, under clause (c) of the proviso to Section 138, the payee or the holder of the cheque acquires the right to institute proceedings for prosecution under Section 138 of the N.I. Act, and the said right remains legally enforceable for a period of one month from the date on which the cause of action has arisen.
The Court said that in the present case, the cheque drawn by the petitioner, was presented by the respondent 2, on 18-09-2019, and thereafter, on 04-01-2020 i.e. within thirty days of the receipt of the return memo dated 17-12-2019 from the bank, the respondent 2 (payee) of the cheque, gave notice to the petitioner and the said notice was received by him on 08-01-2020.
It further added that the petitioner had 15 days’ period to make the payment of the said amount from the date of receipt of notice, on 08-01-2020, and the said period expired on 23-01-2020. The cause of action for filing the complaint, therefore, arose on 23-01-2020, as per clause (c) of the proviso of Section 138. Thus, the complaint having been filed on 20-02-2020, was within the prescribed period of one month as per clause (b) of Section 138 (1), from the date on which the cause of action arose on 23-01-2020, and accordingly the court concerned would be within its right to take cognizance of the offence, as provided under Section 142.
[Sudesh Kumar v. State of UP, 2024 SCC OnLine All 583, Order dated 1-03-2024]
