2014 STPL(Web) 1670 KERALA
[2014(3) CIVIL COURT CASES 110]
KERALA HIGH COURT
(THOMAS P.JOSEPH, J.)
P.J. THOMAS
Appellant
VERSUS
VIJAYKUMARI
Respondent
Crl. Rev. Pet. No.61 of 2012-Decided on 27-3-2014.
(A) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of Cheque - Date of receipt of information of dishonour - Issue and service of notice are proved - Payee can give notice of dishonour to drawer only if payee gets that information - He could not be compelled or expected to do something which is not possible of him - Therefore, it is open to payee to present cheque through his bank and if it is to be taken that date for reckoning period of 15 days is date on which collecting bank received information, it would mean that even before information regarding dishonour has reached payee, he is required to issue a notice intimating that dishonour and demanding payment.
[Para 17]
(B) Negotiable Instruments Act, 1881 - Section 138(b) - Dishonour of Cheque - Expression ’the bank’ - A contextual meaning - Held that expression "the bank" occurring in proviso (b) of Sec.138 of the Act cannot be given the same meaning as given to that expression in proviso (a) - Expression occurring in proviso (b) of Sec.138 of the Act has to be given a contextual meaning - Giving expression in two provisos the same meaning would do violence to purport of proviso (b) of Sec. 138 of the Act.
[Para 17]
(C) Negotiable Instruments Act, 1881 - Section 138(b) - Dishonour of Cheque - Notice -
Computation of period - Day on which collecting bank got information from drawee bank about dishonour of cheque is not relevant day for computing period - Criminal Revision Petition against conviction - It was held that period under proviso (b) of Sec.138 of the Act has to be reckoned from actual date on which information regarding dishonour of cheque reached payee - Hence date for reckoning period mentioned in proviso (b) of Sec. 138 of the Act is not date on which collecting bank received information but actual date on which payee got that information - So far as complainant is concerned, his agent is Balaramapuram branch - Not accepting contention of petitioner, held that notice issued is within time prescribed - Not found reason to interfere with conviction of petitioner confirmed by Additional Sessions Judge - Simple imprisonment till rising of Court is sufficient - Sentence of fine could be converted as one for payment of Rs.3,65,000/- as compensation - Criminal Revision Petition disposed of.
[Para 18]
Advocate(s): Mr. Sunny P. Markose, Mr. G Krishnakumar & Mr. K.A. Ani Joseph, for the Petitioner Mr. K. Jaju Babu, Sr. Advocate, Mr. M.U. Vrjayalakshmi, Mr. T.S. Shyam Prasanth & PP, Mr. T.Y. Laliza, for the Respondents.
ORDER
Thomas P.Joseph, J.—The following points arise for a decision in this Criminal Revision Petition.
(i) Whether the finding of the trial court and the lower appellate court that the petitioner issued the cheque for the discharge of a legally enforceable debt/liability calls for interference?
(ii) Whether the day on which the collecting bank got information from the drawee bank about dishonour of the cheque is the relevant day for computing the period (of fifteen days as it stood before 06.02.2003) under proviso (b) of Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act")?
2. Respondents 1 to 3 are the legal representatives of the deceased complainant. He claimed that the petitioner borrowed Rs.3,65,000/- from him in September, 2001 and on his demanding payment, the petitioner issued Ext.P1, Cheque dated 21.01.2002 drawn on the Syndicate Bank, Ernakulam branch (for short, "the drawee bank"). The complainant presented that cheque for encashment through the Balaramapuram branch of the Thiruvananthapuram District Co-operative Bank (for short, "the collecting bank"). The collecting bank presented the cheque to the drawee bank through its Ernakulam branch. The drawee bank returned the cheque as per Ext.P3, memo for insufficiency of funds. That memo was sent to the collecting bank through its Ernakulam branch and reached the complainant on 10.04.2002 as evidenced by Ext.P12. The complainant issued Ext.P5, notice to the petitioner on 24.04.2002 intimating the dishonour and demanding payment of the amount. Issue and service of the notice are proved by Exts.P5 to P8. Since the petitioner did not pay the amount within the prescribed time, the complainant filed C.C.No.6 of 2004 in the Judicial First Class Magistrate's Court-V, Thiruvananthapuram. Learned magistrate acquitted the petitioner on the ground that notice under proviso (b) of Sec.138 of the Act was not issued to the petitioner within the time prescribed. That acquittal was challenged in this Court in Crl. Appeal No.1034 of 2005. This Court, by judgment dated 28.03.2008 allowed the appeal by way of remand giving both sides opportunity to adduce further evidence. The complainant adduced further evidence. While so, the complainant died and respondents 1 to 3 were impleaded as his legal representatives. They continued the prosecution. Learned magistrate held that due execution of the cheque is proved and that the respondents are entitled to the presumption under Sec. 139 of the Act. Learned magistrate also found that notice under proviso (b) of Sec.138 of the Act was sent within 15 days from the date on which dishonour was intimated to the complainant from the collecting bank. The petitioner was convicted and sentenced to undergo simple imprisonment for six months and pay fine of Rs.3,65,000/-. Learned Additional Sessions Judge (Fast Track-1), Thiruvananthapuram confirmed the conviction and sentence in Crl. Appeal No.310 of 2009. Hence this revision.
3. Point No.(i)
The learned counsel for the petitioner has contended that there is no reliable evidence to show that the petitioner issued the cheque in favour of the complainant. It is argued that evidence of the complainant as PW1 is not acceptable as it is contradictory and unreliable. It is also argued that evidence which the complainant could have produced is suppressed and hence adverse inference has to be drawn. According to the learned counsel, the complainant was not having the financial capacity to raise Rs.3,65,000/- at the
relevant time. Learned counsel has placed reliance on the decisions in Gemini v. Chandran 2007(1) KHC 698 and John K.Abraham v. Simon C.Abraham 2014(1) KLD 64 (SC).
4. The learned counsel for respondents 1 to 3 has contended that the scope of revision is only to see whether the finding of the trial and appellate courts is perverse or is not supported by any evidence. According to the learned counsel, sufficient evidence is let in by the complainant as regards the transaction and due execution of the cheque. It is argued that evidence of the petitioner as DW1 is unreliable as rightly found by the courts below.
5. Version of the petitioner as DW1 is that he had no transaction with the complainant. He had borrowed Rs.75,000/- from Sreekumar, brother-in-law of the complainant. At that time, he had left a signed, blank cheque with the said Sreekumar. He repaid the amount. Sreekumar did not return the cheque. Instead, he demanded exorbitant interest. The signed, blank cheque is misused and complaint is preferred through the complainant.
6. Learned counsel for the petitioner has drawn my attention to the evidence given by the complainant as PW1. He stated that though he belongs to Thiruvananthapuram, he is running a beautician shop at Kottayam. Sreekumar, his brother-in-law is engaged in the same business. Though he is not acquainted with the petitioner family wise, he had occasion to get acquainted with the petitioner when the latter came to the shop of Sreekumar. He claimed (when examined after the remand) that he had noted in his diary the transaction with the petitioner. But that diary was destroyed after 8 years. In cross-examination he claimed that it is in September, 2001 that the petitioner had borrowed the amount from him.
7. In Gemini v. Chandran, (supra) learned Judge of this Court was referring to the meaning of the words 'holder/holder in due course', etc. The Supreme Court, in John K.Abraham v. Simon C.Abraham (supra) held that in order to draw the presumption under Sec.118 read with Sec.139 of the Act, burden is heavy upon the complainant to show that he had the required funds to advance money to the accused.
8. Section 139 of the Act states that it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to in Sec. 138 of the Act for the discharge, in whole or in part, of any debt or other liability. The Supreme Court, in John K.Abraham v. Simon C.Abraham has not stated anything which displaces that presumption. The Supreme Court only pointed out that in order to draw that presumption, the complainant has to show that he had the required funds for advancing the amount.
9. There is evidence of the complainant as PW1 that he was running a beautician shop at Kottayam. That is not disputed by the petitioner. Thus, that the complainant had the capacity to raise Rs.3,65,000/- on the relevant day is proved.
10. So far as non-production of the diary which the complainant was maintaining for sometime is concerned, it is not as if whenever there is failure to produce a document, the court has to or could draw an adverse inference. If the case of the complainant is proved by other evidence, failure to produce the document is not fatal and no adverse inference could be drawn.
11. It is true that the petitioner has given evidence as DW1 and testified to his case. But he has not produced any reliable evidence to show that he had any transaction with Sreekumar or had left any signed, blank cheque with him and at any rate, that cheque is Ext.P1. The petitioner has not examined Sreekumar. It is no answer to say that if examined, Sreekumar would not have supported the petitioner. It is difficult to believe that the petitioner, a businessman would have left signed, blank cheque with another person so that the latter could fill up the cheque according to his whims and fancies. The courts below disbelieved the case of the petitioner, accepted that of the complainant and found that the cheque was issued for the discharge of a legally enforceable debt/liability. Having considered the evidence I do not find reason why the finding of the trial court, confirmed by the first appellate court should be upset in revision.
12. Point No. (ii)
More strenuous argument is on the maintainability of the complaint since according to the learned counsel for the petitioner, notice under proviso (b) of Sec. 138 of the Act is not issued within 15 days (as it then stood) of receipt of information of dishonour of the cheque. According to the learned counsel, a bank is the agent of its customer and hence when the cheque was dishonoured by the drawee bank on 30.03.2002 and information regarding that was given to the Ernakulam branch of the collecting bank, it should be treated as information given to the complainant, as information given to the agent is information given to the principal. The learned counsel has contended that the expression "bank" occurring in proviso (b) of Sec.138 of the Act must be given the same meaning that expression occurring in proviso (a) of Sec.138 is given by the Supreme Court in Ishwar Alloy Steels Ltd. v. Jayaswal Neco Ltd. 2001(3) SCC 607. Learned counsel referred me to the passage in page 267 of the Tannan's Banking Law and Practice. Reliance is also placed on the decision in Antony C.L. v. K.A.Anto and Another 2012(3) KLT 887 where, relying on the decision in Ishwar Alloy Steels Ltd. v. Jayaswal Neco Ltd. learned Judge of this Court has held that date of information of dishonour given to the collecting bank is information given to the payee and the period of 15 days (as it stood then) referred to in proviso (b) of Sec.138 has to be computed from the date on which the collecting bank got the information.
13. The learned counsel for respondents 1 to 3, per contra relied on the decision in Munnoth Investments Ltd. v. Puttukola Properties Ltd. 2001(6) SCC 582. According to the learned counsel, notice issued in this case is within time since the period of 15 days must be computed from the date on which the Balaramapuram branch (collecting bank) has intimated dishonour of the cheque to the complainant.
14. In Indian Overseas v. Industrial Chain Concern 1990(1) SCC 484, the Supreme Court was considering the relationship between banker and customer. It is held that in certain cases the banker will be treated as agent of the customer.
15. Proviso (a) of Sec. 138 of the Act states that the cheque has to be 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. Question arose whether the "bank" referred to in proviso (a) of Sec.138 of the Act is the drawee bank or the collecting bank? The Supreme Court, in Ishwar Alloy Steels Ltd. v. Jayaswal Neco Ltd. (supra) held that the expression "bank" in proviso (a) of Sec.138 of the Act means the 'drawee bank'. Could that meaning be given to the expression "bank" occurring in proviso (b) of Sec.138 of the Act? There, it is stated that notice has to be issued within 15 days (as it then stood) of the receipt of information by the payee from 'the bank' regarding return of the cheque as unpaid.
16. Provisos (a) and (b) of Sec.138 of the Act read as under:
"(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, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid."
17. The thrust of proviso (a) in Sec.138 of the Act is to the 'presentation' of the cheque to 'the bank' which obviously is the drawee bank and not any other bank as the payee wishes. But the thrust in proviso (b) of Sec. 138 of the Act is to the date of receipt of information (regarding dishonour) by the payee. The payee can give notice of dishonour to the drawer only if the payee gets that information. The collecting bank may be the agent of the payee in certain circumstances. But the notice is to be issued by the payee for which he should get information about the dishonour. He could not be compelled or expected to do something which is not possible of him. In such situations, the court while interpreting the provision should bear in mind the principle "lex non cogit ad impossibilia" (the law does not compel a man to do that which he cannot possibly perform). In Bennions Statutory Interpretation, 4th Edn. at pages 969-970 it is stated,
"All civilized systems of law import the principle lex non cogit ad impossibilia"...
If an enactment requires what is legally impossible it will be presumed that Parliament intended it to be modified so as to remove the impossibility element" (referred to with approval in Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 -Pr.29).
In the circumstances, I am of the view that the expression "the bank" occurring in proviso (b) of Sec.138 of the Act cannot be given the same meaning as given to that expression in proviso (a). The expression occurring in proviso (b) of Sec.138 of the Act has to be given a contextual meaning. Giving the expression in the two provisos the same meaning would do violence to the purport of proviso (b) of Sec. 138 of the Act. For, it is open to the payee to present the cheque through his bank and if it is to be taken that the date for reckoning the period of 15 days is the date on which the collecting bank received the information, it would mean that even before the information regarding dishonour has reached the payee, he is required to issue a notice intimating that dishonour and demanding payment.
18. In Munnoth Investments Ltd. Puttukola Properties Ltd. (supra) notice issued by the collecting bank reached the payee only a bit later for some reason. It was held that the period under proviso (b) of Sec.138 of the Act has to be reckoned from the actual date on which information regarding dishonour of the cheque reached the payee. Hence the date for reckoning the period mentioned in proviso (b) of Sec. 138 of the Act is not the date on which the collecting bank received the information but the actual date on which the payee got that information.
19. So far as the complainant is concerned, the collecting bank is the Balaramapuram branch of the Thiruvananthapuram District Co-operative Bank. May be, the said branch, for its convenience sent the cheque through its Ernakulam branch and the dishonour information also came through the same route. So far as the complainant is concerned, his agent is the Balaramapuram branch. In that view of the matter I am unable to accept the contention of the learned counsel for the petitioner.
20. True that a different view was taken by a learned Judge of this Court in Antony C.L. v. K.A.Anto and Another (supra). I notice that the said decision is purely relying on the decision in Ishwar Alloy Steels Ltd. v. Jayaswal Neco Ltd. (supra) which as aforesaid, did not relate to proviso (b) of Sec. 138 of the Act but concerned the expression the "bank" occurring in proviso (a) of Sec. 138 of the Act. Learned Judge while deciding Antony C.L. v. K.A.Anto and Another (supra) has not considered the decision in Munnoth Investments Ltd. Puttukola Properties Ltd. (supra). Hence I cannot agree with the view taken in Antony C.L. v. K.A.Anto and Another (supra). The notice issued in this case is within the time prescribed.
21. I do not find reason to interfere with the conviction of the petitioner entered by the learned magistrate and confirmed by the learned Additional Sessions Judge.
22. The learned counsel for respondents 1 to 3 submitted that the petitioner has deposited Rs.3,65,000/- in the trial court. Having regard to the nature of the offence, I am satisfied that simple imprisonment till rising of the court is sufficient. The sentence of fine could be converted as one for payment of Rs.3,65,000/- as compensation.
23. Criminal Revision Petition is disposed of as under:
(i) Conviction of the petitioner for the offence under Sec.138 of the Act entered by the trial court and confirmed by the appellate court requires no interference.
(ii) The sentence imposed on the petitioner as confirmed by the appellate court is modified as under:
(a) Petitioner shall undergo simple imprisonment till rising of the court.
(b) Sentence of fine is set aside. Instead, the petitioner is directed to pay Rs.3,65,000/- (Rupees Three lakhs and sixty five thousand only) as compensation to respondents 1 to 3 within three months from this day failing which the petitioner shall undergo simple imprisonment for three months.
(c) Amount if any, deposited by the petitioner shall be treated as compensation payable to respondent 1 to 3 and could be withdrawn by them.
(d) The petitioner shall appear before the learned Judicial First Class Magistrate-V, Thiruvananthapuram on 22.04.2014 to receive the sentence.
[2014(3) CIVIL COURT CASES 110]
KERALA HIGH COURT
(THOMAS P.JOSEPH, J.)
P.J. THOMAS
Appellant
VERSUS
VIJAYKUMARI
Respondent
Crl. Rev. Pet. No.61 of 2012-Decided on 27-3-2014.
(A) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of Cheque - Date of receipt of information of dishonour - Issue and service of notice are proved - Payee can give notice of dishonour to drawer only if payee gets that information - He could not be compelled or expected to do something which is not possible of him - Therefore, it is open to payee to present cheque through his bank and if it is to be taken that date for reckoning period of 15 days is date on which collecting bank received information, it would mean that even before information regarding dishonour has reached payee, he is required to issue a notice intimating that dishonour and demanding payment.
[Para 17]
(B) Negotiable Instruments Act, 1881 - Section 138(b) - Dishonour of Cheque - Expression ’the bank’ - A contextual meaning - Held that expression "the bank" occurring in proviso (b) of Sec.138 of the Act cannot be given the same meaning as given to that expression in proviso (a) - Expression occurring in proviso (b) of Sec.138 of the Act has to be given a contextual meaning - Giving expression in two provisos the same meaning would do violence to purport of proviso (b) of Sec. 138 of the Act.
[Para 17]
(C) Negotiable Instruments Act, 1881 - Section 138(b) - Dishonour of Cheque - Notice -
Computation of period - Day on which collecting bank got information from drawee bank about dishonour of cheque is not relevant day for computing period - Criminal Revision Petition against conviction - It was held that period under proviso (b) of Sec.138 of the Act has to be reckoned from actual date on which information regarding dishonour of cheque reached payee - Hence date for reckoning period mentioned in proviso (b) of Sec. 138 of the Act is not date on which collecting bank received information but actual date on which payee got that information - So far as complainant is concerned, his agent is Balaramapuram branch - Not accepting contention of petitioner, held that notice issued is within time prescribed - Not found reason to interfere with conviction of petitioner confirmed by Additional Sessions Judge - Simple imprisonment till rising of Court is sufficient - Sentence of fine could be converted as one for payment of Rs.3,65,000/- as compensation - Criminal Revision Petition disposed of.
[Para 18]
Advocate(s): Mr. Sunny P. Markose, Mr. G Krishnakumar & Mr. K.A. Ani Joseph, for the Petitioner Mr. K. Jaju Babu, Sr. Advocate, Mr. M.U. Vrjayalakshmi, Mr. T.S. Shyam Prasanth & PP, Mr. T.Y. Laliza, for the Respondents.
ORDER
Thomas P.Joseph, J.—The following points arise for a decision in this Criminal Revision Petition.
(i) Whether the finding of the trial court and the lower appellate court that the petitioner issued the cheque for the discharge of a legally enforceable debt/liability calls for interference?
(ii) Whether the day on which the collecting bank got information from the drawee bank about dishonour of the cheque is the relevant day for computing the period (of fifteen days as it stood before 06.02.2003) under proviso (b) of Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act")?
2. Respondents 1 to 3 are the legal representatives of the deceased complainant. He claimed that the petitioner borrowed Rs.3,65,000/- from him in September, 2001 and on his demanding payment, the petitioner issued Ext.P1, Cheque dated 21.01.2002 drawn on the Syndicate Bank, Ernakulam branch (for short, "the drawee bank"). The complainant presented that cheque for encashment through the Balaramapuram branch of the Thiruvananthapuram District Co-operative Bank (for short, "the collecting bank"). The collecting bank presented the cheque to the drawee bank through its Ernakulam branch. The drawee bank returned the cheque as per Ext.P3, memo for insufficiency of funds. That memo was sent to the collecting bank through its Ernakulam branch and reached the complainant on 10.04.2002 as evidenced by Ext.P12. The complainant issued Ext.P5, notice to the petitioner on 24.04.2002 intimating the dishonour and demanding payment of the amount. Issue and service of the notice are proved by Exts.P5 to P8. Since the petitioner did not pay the amount within the prescribed time, the complainant filed C.C.No.6 of 2004 in the Judicial First Class Magistrate's Court-V, Thiruvananthapuram. Learned magistrate acquitted the petitioner on the ground that notice under proviso (b) of Sec.138 of the Act was not issued to the petitioner within the time prescribed. That acquittal was challenged in this Court in Crl. Appeal No.1034 of 2005. This Court, by judgment dated 28.03.2008 allowed the appeal by way of remand giving both sides opportunity to adduce further evidence. The complainant adduced further evidence. While so, the complainant died and respondents 1 to 3 were impleaded as his legal representatives. They continued the prosecution. Learned magistrate held that due execution of the cheque is proved and that the respondents are entitled to the presumption under Sec. 139 of the Act. Learned magistrate also found that notice under proviso (b) of Sec.138 of the Act was sent within 15 days from the date on which dishonour was intimated to the complainant from the collecting bank. The petitioner was convicted and sentenced to undergo simple imprisonment for six months and pay fine of Rs.3,65,000/-. Learned Additional Sessions Judge (Fast Track-1), Thiruvananthapuram confirmed the conviction and sentence in Crl. Appeal No.310 of 2009. Hence this revision.
3. Point No.(i)
The learned counsel for the petitioner has contended that there is no reliable evidence to show that the petitioner issued the cheque in favour of the complainant. It is argued that evidence of the complainant as PW1 is not acceptable as it is contradictory and unreliable. It is also argued that evidence which the complainant could have produced is suppressed and hence adverse inference has to be drawn. According to the learned counsel, the complainant was not having the financial capacity to raise Rs.3,65,000/- at the
relevant time. Learned counsel has placed reliance on the decisions in Gemini v. Chandran 2007(1) KHC 698 and John K.Abraham v. Simon C.Abraham 2014(1) KLD 64 (SC).
4. The learned counsel for respondents 1 to 3 has contended that the scope of revision is only to see whether the finding of the trial and appellate courts is perverse or is not supported by any evidence. According to the learned counsel, sufficient evidence is let in by the complainant as regards the transaction and due execution of the cheque. It is argued that evidence of the petitioner as DW1 is unreliable as rightly found by the courts below.
5. Version of the petitioner as DW1 is that he had no transaction with the complainant. He had borrowed Rs.75,000/- from Sreekumar, brother-in-law of the complainant. At that time, he had left a signed, blank cheque with the said Sreekumar. He repaid the amount. Sreekumar did not return the cheque. Instead, he demanded exorbitant interest. The signed, blank cheque is misused and complaint is preferred through the complainant.
6. Learned counsel for the petitioner has drawn my attention to the evidence given by the complainant as PW1. He stated that though he belongs to Thiruvananthapuram, he is running a beautician shop at Kottayam. Sreekumar, his brother-in-law is engaged in the same business. Though he is not acquainted with the petitioner family wise, he had occasion to get acquainted with the petitioner when the latter came to the shop of Sreekumar. He claimed (when examined after the remand) that he had noted in his diary the transaction with the petitioner. But that diary was destroyed after 8 years. In cross-examination he claimed that it is in September, 2001 that the petitioner had borrowed the amount from him.
7. In Gemini v. Chandran, (supra) learned Judge of this Court was referring to the meaning of the words 'holder/holder in due course', etc. The Supreme Court, in John K.Abraham v. Simon C.Abraham (supra) held that in order to draw the presumption under Sec.118 read with Sec.139 of the Act, burden is heavy upon the complainant to show that he had the required funds to advance money to the accused.
8. Section 139 of the Act states that it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to in Sec. 138 of the Act for the discharge, in whole or in part, of any debt or other liability. The Supreme Court, in John K.Abraham v. Simon C.Abraham has not stated anything which displaces that presumption. The Supreme Court only pointed out that in order to draw that presumption, the complainant has to show that he had the required funds for advancing the amount.
9. There is evidence of the complainant as PW1 that he was running a beautician shop at Kottayam. That is not disputed by the petitioner. Thus, that the complainant had the capacity to raise Rs.3,65,000/- on the relevant day is proved.
10. So far as non-production of the diary which the complainant was maintaining for sometime is concerned, it is not as if whenever there is failure to produce a document, the court has to or could draw an adverse inference. If the case of the complainant is proved by other evidence, failure to produce the document is not fatal and no adverse inference could be drawn.
11. It is true that the petitioner has given evidence as DW1 and testified to his case. But he has not produced any reliable evidence to show that he had any transaction with Sreekumar or had left any signed, blank cheque with him and at any rate, that cheque is Ext.P1. The petitioner has not examined Sreekumar. It is no answer to say that if examined, Sreekumar would not have supported the petitioner. It is difficult to believe that the petitioner, a businessman would have left signed, blank cheque with another person so that the latter could fill up the cheque according to his whims and fancies. The courts below disbelieved the case of the petitioner, accepted that of the complainant and found that the cheque was issued for the discharge of a legally enforceable debt/liability. Having considered the evidence I do not find reason why the finding of the trial court, confirmed by the first appellate court should be upset in revision.
12. Point No. (ii)
More strenuous argument is on the maintainability of the complaint since according to the learned counsel for the petitioner, notice under proviso (b) of Sec. 138 of the Act is not issued within 15 days (as it then stood) of receipt of information of dishonour of the cheque. According to the learned counsel, a bank is the agent of its customer and hence when the cheque was dishonoured by the drawee bank on 30.03.2002 and information regarding that was given to the Ernakulam branch of the collecting bank, it should be treated as information given to the complainant, as information given to the agent is information given to the principal. The learned counsel has contended that the expression "bank" occurring in proviso (b) of Sec.138 of the Act must be given the same meaning that expression occurring in proviso (a) of Sec.138 is given by the Supreme Court in Ishwar Alloy Steels Ltd. v. Jayaswal Neco Ltd. 2001(3) SCC 607. Learned counsel referred me to the passage in page 267 of the Tannan's Banking Law and Practice. Reliance is also placed on the decision in Antony C.L. v. K.A.Anto and Another 2012(3) KLT 887 where, relying on the decision in Ishwar Alloy Steels Ltd. v. Jayaswal Neco Ltd. learned Judge of this Court has held that date of information of dishonour given to the collecting bank is information given to the payee and the period of 15 days (as it stood then) referred to in proviso (b) of Sec.138 has to be computed from the date on which the collecting bank got the information.
13. The learned counsel for respondents 1 to 3, per contra relied on the decision in Munnoth Investments Ltd. v. Puttukola Properties Ltd. 2001(6) SCC 582. According to the learned counsel, notice issued in this case is within time since the period of 15 days must be computed from the date on which the Balaramapuram branch (collecting bank) has intimated dishonour of the cheque to the complainant.
14. In Indian Overseas v. Industrial Chain Concern 1990(1) SCC 484, the Supreme Court was considering the relationship between banker and customer. It is held that in certain cases the banker will be treated as agent of the customer.
15. Proviso (a) of Sec. 138 of the Act states that the cheque has to be 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. Question arose whether the "bank" referred to in proviso (a) of Sec.138 of the Act is the drawee bank or the collecting bank? The Supreme Court, in Ishwar Alloy Steels Ltd. v. Jayaswal Neco Ltd. (supra) held that the expression "bank" in proviso (a) of Sec.138 of the Act means the 'drawee bank'. Could that meaning be given to the expression "bank" occurring in proviso (b) of Sec.138 of the Act? There, it is stated that notice has to be issued within 15 days (as it then stood) of the receipt of information by the payee from 'the bank' regarding return of the cheque as unpaid.
16. Provisos (a) and (b) of Sec.138 of the Act read as under:
"(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, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid."
17. The thrust of proviso (a) in Sec.138 of the Act is to the 'presentation' of the cheque to 'the bank' which obviously is the drawee bank and not any other bank as the payee wishes. But the thrust in proviso (b) of Sec. 138 of the Act is to the date of receipt of information (regarding dishonour) by the payee. The payee can give notice of dishonour to the drawer only if the payee gets that information. The collecting bank may be the agent of the payee in certain circumstances. But the notice is to be issued by the payee for which he should get information about the dishonour. He could not be compelled or expected to do something which is not possible of him. In such situations, the court while interpreting the provision should bear in mind the principle "lex non cogit ad impossibilia" (the law does not compel a man to do that which he cannot possibly perform). In Bennions Statutory Interpretation, 4th Edn. at pages 969-970 it is stated,
"All civilized systems of law import the principle lex non cogit ad impossibilia"...
If an enactment requires what is legally impossible it will be presumed that Parliament intended it to be modified so as to remove the impossibility element" (referred to with approval in Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 -Pr.29).
In the circumstances, I am of the view that the expression "the bank" occurring in proviso (b) of Sec.138 of the Act cannot be given the same meaning as given to that expression in proviso (a). The expression occurring in proviso (b) of Sec.138 of the Act has to be given a contextual meaning. Giving the expression in the two provisos the same meaning would do violence to the purport of proviso (b) of Sec. 138 of the Act. For, it is open to the payee to present the cheque through his bank and if it is to be taken that the date for reckoning the period of 15 days is the date on which the collecting bank received the information, it would mean that even before the information regarding dishonour has reached the payee, he is required to issue a notice intimating that dishonour and demanding payment.
18. In Munnoth Investments Ltd. Puttukola Properties Ltd. (supra) notice issued by the collecting bank reached the payee only a bit later for some reason. It was held that the period under proviso (b) of Sec.138 of the Act has to be reckoned from the actual date on which information regarding dishonour of the cheque reached the payee. Hence the date for reckoning the period mentioned in proviso (b) of Sec. 138 of the Act is not the date on which the collecting bank received the information but the actual date on which the payee got that information.
19. So far as the complainant is concerned, the collecting bank is the Balaramapuram branch of the Thiruvananthapuram District Co-operative Bank. May be, the said branch, for its convenience sent the cheque through its Ernakulam branch and the dishonour information also came through the same route. So far as the complainant is concerned, his agent is the Balaramapuram branch. In that view of the matter I am unable to accept the contention of the learned counsel for the petitioner.
20. True that a different view was taken by a learned Judge of this Court in Antony C.L. v. K.A.Anto and Another (supra). I notice that the said decision is purely relying on the decision in Ishwar Alloy Steels Ltd. v. Jayaswal Neco Ltd. (supra) which as aforesaid, did not relate to proviso (b) of Sec. 138 of the Act but concerned the expression the "bank" occurring in proviso (a) of Sec. 138 of the Act. Learned Judge while deciding Antony C.L. v. K.A.Anto and Another (supra) has not considered the decision in Munnoth Investments Ltd. Puttukola Properties Ltd. (supra). Hence I cannot agree with the view taken in Antony C.L. v. K.A.Anto and Another (supra). The notice issued in this case is within the time prescribed.
21. I do not find reason to interfere with the conviction of the petitioner entered by the learned magistrate and confirmed by the learned Additional Sessions Judge.
22. The learned counsel for respondents 1 to 3 submitted that the petitioner has deposited Rs.3,65,000/- in the trial court. Having regard to the nature of the offence, I am satisfied that simple imprisonment till rising of the court is sufficient. The sentence of fine could be converted as one for payment of Rs.3,65,000/- as compensation.
23. Criminal Revision Petition is disposed of as under:
(i) Conviction of the petitioner for the offence under Sec.138 of the Act entered by the trial court and confirmed by the appellate court requires no interference.
(ii) The sentence imposed on the petitioner as confirmed by the appellate court is modified as under:
(a) Petitioner shall undergo simple imprisonment till rising of the court.
(b) Sentence of fine is set aside. Instead, the petitioner is directed to pay Rs.3,65,000/- (Rupees Three lakhs and sixty five thousand only) as compensation to respondents 1 to 3 within three months from this day failing which the petitioner shall undergo simple imprisonment for three months.
(c) Amount if any, deposited by the petitioner shall be treated as compensation payable to respondent 1 to 3 and could be withdrawn by them.
(d) The petitioner shall appear before the learned Judicial First Class Magistrate-V, Thiruvananthapuram on 22.04.2014 to receive the sentence.
Comments
Post a Comment