It, therefore, seems to me that having regard to this well recognised rule of interpretation, a fair and reasonable construction of Clause (c) of Section 138 of the Act should be read into it so that the expression therein "within 15 days of the receipt of the said notice" should be made to mean within 15 days from the date of knowledge of the sender about the receipt of the notice so that suchlike complaint may not fail for default on the part of the postal department, without any fault on the part of the complainant. On such construction, the cause of action for such complaint, so far as the complainant is concerned, would accrue on the failure of the drawer to make payment within fifteen days from the date of knowledge of the complainant about the receipt of the notice by the former (drawer), which would neither be prejudicial to him (drawer/accused), rather beneficial to him as he would get longer time to make payment of the amount and thus avoid criminal liability for non-payment. It would indeed be in the interest of such-like complainant to file complaint for such offences within the prescribed period so that the same may not be turned down for having been filed beyond the prescribed period resulting in failure of the remedy available to him under the law on such technical ground. Such-like complainant would invariably be interested in seeing that the court takes cognizance of the offence and issues process because that would be the culmination of the petition of complaint filed by him on the allegations made and could hardly allow his petition of complaint to be time barred to his own prejudice. At the same time, however, the complainant should exhibit due diligence and promptitude in securing knowledge within a reasonable period about the date of receipt of the notice, sent by registered post acknowledgment due, without sleeping over the matter for an unreasonable period, in case of failure of the postal department to send back the acknowledgment due card and/or intimate the date of receipt of the notice by the addressee within a reasonable period.
2. On account of goods supplied by O. P. No. 1-complainant to the petitioners-accused persons on or before October 16, 1990, they had handed over a cheque for the sum of Rs. 50,000 only, being cheque No. 374629, dated September 12, 1990, drawn on the State Bank of India, Chowringhee branch, Calcutta, to him (O. P. No. 1) on September 12, 1990, in discharge of their liability in part. The same was presented (by him) before the bank on the same very day, to be dishonoured. The complainant had again presented the said cheque before the bank on November 20, 1990, on the request of the accused persons, which had again been dishonoured, intimated by the bank to him on December 15, 1990 ; whereupon his advocate had sent registered notices/letters with acknowledgment due to petitioners-accused Nos. 2 and 3 on December 28, 1990, at their residential addresses for making payment of the said amount within fifteen days of the receipt of the same. Since the acknowledgment due cards (acknowledgment thereof) had not reached him till February 24, 1991, his learned advocate had sent a letter to the postal authority on February 25, 1991. enquiring about the delivery/service of the aforesaid notices sent by registered post to petitioners-accused Nos. 2 and 3. On the following day, on February 26, 1991, he (complainant), however, had received the said acknowledgment due cards and came to know that the notices had been received by the accused persons on January 1, 1991, and January 3, 1991. The relevant petition of complaint had been filed by the complainant on the very next day, February 27, 1991. The learned magistrate upon examination of the witnesses and perusal of the record appears to have taken cognizance of the alleged offence and directed issue of summons upon the petitioners-accused by his order dated March 4, 1991.
3. A petition had thereafter been filed on behalf of the accused persons before the learned magistrate on November 14, 1991, for dropping the proceedings and discharging them for the reasons stated therein under Section 258 of the Criminal Procedure Code, 1973, on the plea that the petition of complaint had been filed beyond the prescribed period, rejected by him (learned magistrate) by his impugned order dated December 6, 1991, for the reasons recorded therein.
4. Being aggrieved by the order so passed by the learned magistrate, the accused-petitioners have approached this court in revision for appropriate relief.
5. As already indicated, on the relevant cheque being dishonoured twice, the complainant had sent notices by registered post with acknowledgment due to accused Nos. 2 and 3 through his advocate by letters dated December 28, 1990, demanding payment of the said amount of money. Accused No. 1 had received the aforesaid notice on January 1, 1991, and accused No. 3 had received the notice sent to him on January 3, 1991. In terms of Clause (c) of Section 138 of the Act, the cause of action (for the complaint) should be deemed to have arisen on January 18, 1991. The complaint was to be filed within one month from January 18, 1991, under Section 142(b) of the Act, i.e., by February 18, 1991. But the relevant complaint had been filed by the complainant before the court on February 27, 1991, a little beyond one month from the date on which the cause of action for the relevant complaint apparently arose. The relevant complaint was prima facie time barred as such. But the question which crops up for consideration in the instant proceedings is whether the relevant complaint would indeed be time barred, in the special and peculiar undisputed facts and circumstances of the instant case, as indicated above. No decision on the point calling for consideration could be cited by the learned advocates for any of the parties.
6. Under the provisions of Clause (c) of Section 138 of the Act, the cause of action for such-like complaint arises on the failure of the drawer "to make 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 15 days of the receipt of the said notice" given under Clause (b) thereof, and not before that. No such complaint can, therefore, legally be filed before the aforesaid period. That being so, the material and relevant date for accrual of cause of action for such-like complaint is the date of receipt of notice by the drawer. The complainant being the sender of the notice cannot clearly receive the same. The recipient of the notice under Clause (b) of Section 138 of the Act must invariably be the drawer of the cheque, to whom it is given. Knowledge of the sender about the date of receipt of the notice by the drawer is, therefore, very much material as regards accrual of the cause of action for making such-like complaint. The sender of the notice could clearly have no personal knowledge about the date of receipt of the same, unless the notice is sent by messenger and the receipt thereof is duly acknowledged by the person to whom it is sent. But in cases (as in the instant case), where notice is sent by registered post acknowledgment due, which is the usual mode of service, which could, in particular, hardly be avoided if the parties do not belong to the same place or near about places, the knowledge of the sender (complainant) about the date of receipt of such notice would invariably be dependent upon other agencies, namely, the postal department, which is obliged to return back the acknowledgment due card to the sender of the registered notice. But the promptitude and efficiency of the postal department is a matter which is an everyday experience for the people at large. More often than not, acknowledgment due card is hardly returned back to the sender (of the registered notice) in time. Not infrequently, the acknowledgment due card never reaches back the sender, necessitating correspondence with the postal department as to the delivery/service of the registered notice or the date of delivery/ service of such notice. Not unoften, the somnolence of the postal authority could hardly be shaken within reasonable time in answering such query when the acknowledgment due card does not reach back the sender. In such cases, such-like complaint is likely to fail for no fault of the complainant, but for the failure/laches on the part of the postal department. The purpose of the Act is, therefore, likely to be frustrated, in such circumstances, which could never possibly have been intended by the makers thereof. The question which thus naturally arises for consideration is whether the literal and mechanical way of construing Clause (c) of Section 138 of the relevant Act would be justified in law, in such circumstances. The knowledge of the sender of the notice about the date of receipt of the same being an essential requirement of fair-play and natural justice, the expression "within 15 days of the receipt of the said notice", used in the aforesaid provision, should clearly mean the date when the sender acquires the knowledge about the date of the receipt of the notice given by him under Clause (b) of the relevant provision. If a person is given a right to resort to a remedy within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew about the date of accrual of the cause of action for making a complaint before the competent court for seeking redress therefor, or else, it might be an absurd and unreasonable application of law. On the analogy of the decision of the Supreme Court in K. P. Varghese v. ITO , we must, therefore, eschew literalness in the
interpretation of Clause (c) of Section 138 of the Act and "try to arrive at an interpretation which avoids such absurdity and mischief and makes the provision rational and sensible, unless of course, our hands are tied and we cannot find any escape from the tyranny of literal interpretation." It is now a well-settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result, which could never have been intended by the Legislature, the court may modify the language used by the Legislature, or even "do some violence" to it, so as to achieve the obvious intention of the Legislature and produce a rational construction (vide Luke v. Inland Revenue Commissioners [1963] AC 557 ; [1964] 54 ITR 692 (HL)). The court may also in such a case read into the statutory provision a condition which, though nol expressed, is implicit as constituting the basic assumption underlying the statutory provision. It, therefore, seems to me that having regard to this well recognised rule of interpretation, a fair and reasonable construction of Clause (c) of Section 138 of the Act should be read into it so that the expression therein "within 15 days of the receipt of the said notice" should be made to mean within 15 days from the date of knowledge of the sender about the receipt of the notice so that suchlike complaint may not fail for default on the part of the postal department, without any fault on the part of the complainant. On such construction, the cause of action for such complaint, so far as the complainant is concerned, would accrue on the failure of the drawer to make payment within fifteen days from the date of knowledge of the complainant about the receipt of the notice by the former (drawer), which would neither be prejudicial to him (drawer/accused), rather beneficial to him as he would get longer time to make payment of the amount and thus avoid criminal liability for non-payment. It would indeed be in the interest of such-like complainant to file complaint for such offences within the prescribed period so that the same may not be turned down for having been filed beyond the prescribed period resulting in failure of the remedy available to him under the law on such technical ground. Such-like complainant would invariably be interested in seeing that the court takes cognizance of the offence and issues process because that would be the culmination of the petition of complaint filed by him on the allegations made and could hardly allow his petition of complaint to be time barred to his own prejudice. At the same time, however, the complainant should exhibit due diligence and promptitude in securing knowledge within a reasonable period about the date of receipt of the notice, sent by registered post acknowledgment due, without sleeping over the matter for an unreasonable period, in case of failure of the postal department to send back the acknowledgment due card and/or intimate the date of receipt of the notice by the addressee within a reasonable period.
7. In view of the discussions above, I am clearly of the view that the cause of action for the relevant complaint, so far as the complaint is concerned, arose on the expiry of 15 days from February 26, 1991, the date of knowledge of the complainant about the receipt of notices by the accused persons, sent under Clause (b) of Section 138 of the Act. The filing of the petition of complaint by the complainant within one month therefrom cannot therefore be held to be beyond the period specified in Section 138(b) of the Act. There is, therefore, little point to interfere with the impugned order passed by the learned magistrate. The revisional application fails in the result.
8. The interim stay granted by this court by order dated December 20, 1991, stands vacated.
9. Since the relevant proceedings had remained stayed for so long a period in view of the aforesaid stay order of this court, the learned magistrate is hereby directed to proceed with the trial of the relevant case with utmost expedition. He should seek to conclude the trial and dispose of the case, as early as possible, preferably within a period of six months from the date of communication of this order.
Calcutta High Court
Santa Priya Engineers (Pvt.) Ltd. ... vs Uday Sankar Das And Anr. on 11 June, 1993
Equivalent citations: (1993) 2 CALLT 101 HC, 1993 (2) CHN 82
1. The only point emerging for consideration in the instant revisional application filed by the accused-petitioners for quashing the relevant proceedings, being Case No. C-118 of 1991 before the Chief Judicial Magistrate of 24-Parganas at Alipore, is whether it was competent for him to take cognizance of the alleged offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter shortened into "the Act"), on the petition of complaint filed by complainant-opposite party No. 1 beyond the period specified in Section 142(b) thereof, in the facts and circumstances hereinbelow indicated. To put it somewhat differently when had the cause of action for the relevant complaint arisen, in the facts and circumstances thereof ?2. On account of goods supplied by O. P. No. 1-complainant to the petitioners-accused persons on or before October 16, 1990, they had handed over a cheque for the sum of Rs. 50,000 only, being cheque No. 374629, dated September 12, 1990, drawn on the State Bank of India, Chowringhee branch, Calcutta, to him (O. P. No. 1) on September 12, 1990, in discharge of their liability in part. The same was presented (by him) before the bank on the same very day, to be dishonoured. The complainant had again presented the said cheque before the bank on November 20, 1990, on the request of the accused persons, which had again been dishonoured, intimated by the bank to him on December 15, 1990 ; whereupon his advocate had sent registered notices/letters with acknowledgment due to petitioners-accused Nos. 2 and 3 on December 28, 1990, at their residential addresses for making payment of the said amount within fifteen days of the receipt of the same. Since the acknowledgment due cards (acknowledgment thereof) had not reached him till February 24, 1991, his learned advocate had sent a letter to the postal authority on February 25, 1991. enquiring about the delivery/service of the aforesaid notices sent by registered post to petitioners-accused Nos. 2 and 3. On the following day, on February 26, 1991, he (complainant), however, had received the said acknowledgment due cards and came to know that the notices had been received by the accused persons on January 1, 1991, and January 3, 1991. The relevant petition of complaint had been filed by the complainant on the very next day, February 27, 1991. The learned magistrate upon examination of the witnesses and perusal of the record appears to have taken cognizance of the alleged offence and directed issue of summons upon the petitioners-accused by his order dated March 4, 1991.
3. A petition had thereafter been filed on behalf of the accused persons before the learned magistrate on November 14, 1991, for dropping the proceedings and discharging them for the reasons stated therein under Section 258 of the Criminal Procedure Code, 1973, on the plea that the petition of complaint had been filed beyond the prescribed period, rejected by him (learned magistrate) by his impugned order dated December 6, 1991, for the reasons recorded therein.
4. Being aggrieved by the order so passed by the learned magistrate, the accused-petitioners have approached this court in revision for appropriate relief.
5. As already indicated, on the relevant cheque being dishonoured twice, the complainant had sent notices by registered post with acknowledgment due to accused Nos. 2 and 3 through his advocate by letters dated December 28, 1990, demanding payment of the said amount of money. Accused No. 1 had received the aforesaid notice on January 1, 1991, and accused No. 3 had received the notice sent to him on January 3, 1991. In terms of Clause (c) of Section 138 of the Act, the cause of action (for the complaint) should be deemed to have arisen on January 18, 1991. The complaint was to be filed within one month from January 18, 1991, under Section 142(b) of the Act, i.e., by February 18, 1991. But the relevant complaint had been filed by the complainant before the court on February 27, 1991, a little beyond one month from the date on which the cause of action for the relevant complaint apparently arose. The relevant complaint was prima facie time barred as such. But the question which crops up for consideration in the instant proceedings is whether the relevant complaint would indeed be time barred, in the special and peculiar undisputed facts and circumstances of the instant case, as indicated above. No decision on the point calling for consideration could be cited by the learned advocates for any of the parties.
6. Under the provisions of Clause (c) of Section 138 of the Act, the cause of action for such-like complaint arises on the failure of the drawer "to make 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 15 days of the receipt of the said notice" given under Clause (b) thereof, and not before that. No such complaint can, therefore, legally be filed before the aforesaid period. That being so, the material and relevant date for accrual of cause of action for such-like complaint is the date of receipt of notice by the drawer. The complainant being the sender of the notice cannot clearly receive the same. The recipient of the notice under Clause (b) of Section 138 of the Act must invariably be the drawer of the cheque, to whom it is given. Knowledge of the sender about the date of receipt of the notice by the drawer is, therefore, very much material as regards accrual of the cause of action for making such-like complaint. The sender of the notice could clearly have no personal knowledge about the date of receipt of the same, unless the notice is sent by messenger and the receipt thereof is duly acknowledged by the person to whom it is sent. But in cases (as in the instant case), where notice is sent by registered post acknowledgment due, which is the usual mode of service, which could, in particular, hardly be avoided if the parties do not belong to the same place or near about places, the knowledge of the sender (complainant) about the date of receipt of such notice would invariably be dependent upon other agencies, namely, the postal department, which is obliged to return back the acknowledgment due card to the sender of the registered notice. But the promptitude and efficiency of the postal department is a matter which is an everyday experience for the people at large. More often than not, acknowledgment due card is hardly returned back to the sender (of the registered notice) in time. Not infrequently, the acknowledgment due card never reaches back the sender, necessitating correspondence with the postal department as to the delivery/service of the registered notice or the date of delivery/ service of such notice. Not unoften, the somnolence of the postal authority could hardly be shaken within reasonable time in answering such query when the acknowledgment due card does not reach back the sender. In such cases, such-like complaint is likely to fail for no fault of the complainant, but for the failure/laches on the part of the postal department. The purpose of the Act is, therefore, likely to be frustrated, in such circumstances, which could never possibly have been intended by the makers thereof. The question which thus naturally arises for consideration is whether the literal and mechanical way of construing Clause (c) of Section 138 of the relevant Act would be justified in law, in such circumstances. The knowledge of the sender of the notice about the date of receipt of the same being an essential requirement of fair-play and natural justice, the expression "within 15 days of the receipt of the said notice", used in the aforesaid provision, should clearly mean the date when the sender acquires the knowledge about the date of the receipt of the notice given by him under Clause (b) of the relevant provision. If a person is given a right to resort to a remedy within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew about the date of accrual of the cause of action for making a complaint before the competent court for seeking redress therefor, or else, it might be an absurd and unreasonable application of law. On the analogy of the decision of the Supreme Court in K. P. Varghese v. ITO , we must, therefore, eschew literalness in the
interpretation of Clause (c) of Section 138 of the Act and "try to arrive at an interpretation which avoids such absurdity and mischief and makes the provision rational and sensible, unless of course, our hands are tied and we cannot find any escape from the tyranny of literal interpretation." It is now a well-settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result, which could never have been intended by the Legislature, the court may modify the language used by the Legislature, or even "do some violence" to it, so as to achieve the obvious intention of the Legislature and produce a rational construction (vide Luke v. Inland Revenue Commissioners [1963] AC 557 ; [1964] 54 ITR 692 (HL)). The court may also in such a case read into the statutory provision a condition which, though nol expressed, is implicit as constituting the basic assumption underlying the statutory provision. It, therefore, seems to me that having regard to this well recognised rule of interpretation, a fair and reasonable construction of Clause (c) of Section 138 of the Act should be read into it so that the expression therein "within 15 days of the receipt of the said notice" should be made to mean within 15 days from the date of knowledge of the sender about the receipt of the notice so that suchlike complaint may not fail for default on the part of the postal department, without any fault on the part of the complainant. On such construction, the cause of action for such complaint, so far as the complainant is concerned, would accrue on the failure of the drawer to make payment within fifteen days from the date of knowledge of the complainant about the receipt of the notice by the former (drawer), which would neither be prejudicial to him (drawer/accused), rather beneficial to him as he would get longer time to make payment of the amount and thus avoid criminal liability for non-payment. It would indeed be in the interest of such-like complainant to file complaint for such offences within the prescribed period so that the same may not be turned down for having been filed beyond the prescribed period resulting in failure of the remedy available to him under the law on such technical ground. Such-like complainant would invariably be interested in seeing that the court takes cognizance of the offence and issues process because that would be the culmination of the petition of complaint filed by him on the allegations made and could hardly allow his petition of complaint to be time barred to his own prejudice. At the same time, however, the complainant should exhibit due diligence and promptitude in securing knowledge within a reasonable period about the date of receipt of the notice, sent by registered post acknowledgment due, without sleeping over the matter for an unreasonable period, in case of failure of the postal department to send back the acknowledgment due card and/or intimate the date of receipt of the notice by the addressee within a reasonable period.
7. In view of the discussions above, I am clearly of the view that the cause of action for the relevant complaint, so far as the complaint is concerned, arose on the expiry of 15 days from February 26, 1991, the date of knowledge of the complainant about the receipt of notices by the accused persons, sent under Clause (b) of Section 138 of the Act. The filing of the petition of complaint by the complainant within one month therefrom cannot therefore be held to be beyond the period specified in Section 138(b) of the Act. There is, therefore, little point to interfere with the impugned order passed by the learned magistrate. The revisional application fails in the result.
8. The interim stay granted by this court by order dated December 20, 1991, stands vacated.
9. Since the relevant proceedings had remained stayed for so long a period in view of the aforesaid stay order of this court, the learned magistrate is hereby directed to proceed with the trial of the relevant case with utmost expedition. He should seek to conclude the trial and dispose of the case, as early as possible, preferably within a period of six months from the date of communication of this order.
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