G.R.Bhattacharjee, J. - (1.) A question of interpretation of section 138 of the Negotiable Instruments Act, 1881 has been raised in this revisional application. The petitioner no. 2 as Director of the petitioner no. 1 Company issued the following four cheques towards the discharge of their liabilities against the dues of the opposite party complainant, viz. (1) Cheque No. 850816 dated 15-5-92 for Rs. 14,356/-, (2) Cheque No. 850817 dated 10-6-92 for Rs. 2,746/-, (3) Cheque No. 850818 dated 10-6-92 for Rs. 8,000/-, (4) Cheque No. 850819 dated 10-7-92 for Rs. 11,740/-.
(2.) The total amount under those four cheques was Rs. 36,842/-. Those were however all post-dated cheques. The first three cheques were presented to the Bank on 13th June, 1992 but they were returned unpaid by the drawee bank with the remark 'funds insufficient'. The cheques were again presented to the bank on 10th July, 1992 but this time also they were dishonoured by the bank. On 13th July, 1992 the complainant payee received a letter dated the 7th July, 1992 containing a request of the drawer of the cheques to hold the cheques for the time being. On 14th July, 1992 the complainant payee issued notice to the drawer of the cheques demanding payment of the said aggregate amount of the cheques, i.e. Rs. 36,842/- and the said notice was duly received by the drawer of the cheques on the 16th of July, 1992. On 28th July, 1992 the drawer of the cheques forwarded a pay order for Rs. 5,000/- only to the payee. The payee however filed complaint under sections 138 and 141 of the Negotiable Instruments Act before the learned Chief Metropolitan Magistrate, Calcutta on the 12th of August, 1992. On 20th November, 1992 the complainant payee encashed the pay order for Rs. 5,000/- earlier forwarded to him by the drawer of the cheques.
(3.) For appreciating the arguments made by the learned Advocates for both sides in this case it is necessary first to go through the provisions of sections 138 and 142 of the Negotiable Instruments Act, 1881 which are quoted below : "Sec. 138. Dishonour of cheque for insufficiency etc. of funds in the account. -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 extend to one year, 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, within fifteen days of the receipt or 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 or other liability' means a legally enforceable debt or outer liability. "Sec. 142. Cognizance of offences.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made be the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138; (c) no court inferior to that of a Metropolitan Magistrate or a judicial Magistrate of the first class shall try any offence punishable under section 138".;