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1996 DIGILAW 332 (CAL)

Prasanta Agarwal v. S. K. Roy

1996-08-26

A.B.Mukherjee

body1996
Judgment 1. THIS an application under section 482, Cr. P. C. made with a view to quash the complaint case No. 81 of 1992 pending before the chief Judicial Magistrate, Alipore under section 138, Negotiable Instruments Act (hereinafter referred to as the N. I. Act.) 2. THE petitioner was one of the partners of M/s. S. P. Electronics having its registered office at V. I. P. Road, Calcutta. After the said firm was dissolved on 31st March, 1990, the petitioner runs the same as a proprietary concern. On 7th February, 1992 the opposite party No. 1 in his official capacity filed a complaint against the petitioner, the other partner as also the firm itself alleging commission of offence under section 138 of the Negotiable Instruments Act. It was alleged in that complaint that the petitioner and his partner placed orders for supply of some. T. V. Parts on different dates with the complainant's company and the Company effected delivery of the said parts on different dates in between 8th October, 1990 and 7th February, 1991 under 3 invoices as mentioned in the petition of complaint. The petitioner and his partner issued three cheques of different dates, namely 3.10.1991, 28.10.1991 and 21.10.1991 for different sums. The complainant's company presented those cheques with their banker, namely M/s. Punjab National Bank, Ballygunge Branch, but all the cheques were returned to the complainant's company, after they were dishonoured. In one case, the dishonour was on the ground that the payment was stopped by the drawer. In two other cases, the cause is that the cheques exceeded the arrangement. The complainant sent a notice within the statutory period but as no payment was made, the case was started. The cheques were presented through M/s. Punjab National Bank, ballygunge Branch situated at Gariahat Road and hence the compliant was filed before the Chief Judicial Magistrate, Alipore. It is the contention of the petitioner that the entire proceeding initiated and pending before the Trial Court is void ab initio. The petitioner's case is that as per the arrangement, he was asked to issue three post-dated cheques as security towards the value of the consignments for the articles to be supplied in future and as such the cheques were issued not for the purpose of discharge of any debt or liability incurred by the petitioner. The petitioner's case is that as per the arrangement, he was asked to issue three post-dated cheques as security towards the value of the consignments for the articles to be supplied in future and as such the cheques were issued not for the purpose of discharge of any debt or liability incurred by the petitioner. It is also the petitioner's case that the dates of some of the cheques were subsequently altered at the instance of the opposite party No. 1 since the complainant's Company failed to effect the supply of consignments as per order of the said firm within the specified period. 3. IT is also alleged that the payment was stopped at the instruction of the petitioner since the supply was not made in time. There was no demand in terms of section 138 (b) of the Negotiable Instruments Act within the statutory period. Instead of making a demand for a sum of Rs.2,90,700. 00 which is the total amount of the cheques the complainant's company by their demand notice dated 23rd December, 1991 demanded a sum of Rs.15,14,515. 68 with interest at the rate of 31% and as such the said demand notice is not in accordance with law. It is also alleged that the court of the Chief Judicial Magistrate has no jurisdiction to entertain the complaint since the alleged offence was committed outside the territorial jurisdiction of the Chief judicial Magistrate, Alipore. It is alleged that offence, if any, was committed at the office of the petitioner's company at V. I. P. Road within P. S. Manicktola, from where cheques were issued and the accused persons failed to make payment in terms of section 138 (c) of the Negotiable Instruments Act. Hence, the revisional application with the prayer stated earlier. 4. NONE appeared for the opposite parties even though notice was duly served on both of them. Accordingly, argument advanced on behalf of the petitioner alone was heard. It is contended by the learned Advocate for the petitioner that there was the allegation of dishonour of three cheques but the demand notice given by the opposite party No. 1 relates to a number of cheques. In this connection, he has relied on a xerox copy of the notice dated 23. 12. 1991 being annexure 'b'. It is contended by the learned Advocate for the petitioner that there was the allegation of dishonour of three cheques but the demand notice given by the opposite party No. 1 relates to a number of cheques. In this connection, he has relied on a xerox copy of the notice dated 23. 12. 1991 being annexure 'b'. It appears from the same that the demand was made with regard to 11 cheques, the total sum amounting to more than 15 lacs. On a scrutiny of the copy of the complaint which is annexure 'c' it appears that the complaint was filed due to alleged dishonour of three cheques, dated 3. 10. 1991, 21. 10. 1991 and 28. 10. 1991, the respective amount being Rs.1,39,740/-, Rs.1,50,960/- and Rs.1,36,680/ -. It further appears that apart from the said amount of 15 lacs, there was also a claim of interest at the rate of 31% per annum on the demanded sum. It has been argued for the petitioner after placing reliance on a decision reported in 1996, Calcutta Criminal Law Reporter 40 that the amount of cheque alleged to have been dishonoured should be the basis of the demand notice. An offence under section 138 of the Negotiable Instruments Act is said to have been committed when cheque issued for the discharge of any debt or 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 cheques or that it exceeds the amount arranged to be paid from that account by agreement with the Bank. Section 138 (b)requires the payee or the holder in due course of the cheque to make a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 15 days of receipt of information by him from the Bank regarding return of the cheque as unpaid. In terms of section 138 (c) of the Negotiable Instruments act, in case the drawer fails to make payment of the said amount of money to the payee or the holder in due course as the case may be, within 15 days of receipt of the said notice, a cause of action for an offence under section 138 of Negotiable instruments Act arises. In terms of section 142 (b), a complaint for an offence under section 138, Negotiable Instruments Act is to be made within one month of the date on which the cause of action arises under section 138 (c) of the N. I. Act. 5. IF the aforesaid tests are applied in the present case, it will appear that there was certainly a demand by opposite party No. 1, namely, the complainant within 15 days of receipt of intimation from the Bank but the amount mentioned in the demand notice far exceeded the total amount of the three cheques alleged to have been dishonoured by the Bank which forms the subject matter of the complaint. Therefore, when the demand is not in accordance with law, the consequent non-payment cannot give rise to a cause of action in terms of section 138 (c) of the Negotiable Instruments act. Since there was no cause of action, no complaint can be made in accordance with section 142 (2) of the Negotiable Instruments Act and as such the taking of cognizance in the facts and circumstances is not in accordance with law. 6. IT is also argued for the petitioner that the Court of the Chief Judicial Magistrate, alipore has got no jurisdiction to entertain the complaint. The reason is that cheques were issued from the office of the petitioner at V. I. P. Road, within Manicktola rs. and the petitioner also stays at Park Street and the Banks are situated either at ballygunge or at Park Street and as such the Chief Judicial Magistrate, Alipore cannot have any jurisdiction. For our purpose the question of jurisdiction loses all significance since there was no cause of action for preferring a complaint under section 138 of the negotiable Instruments Act. Therefore, the question of jurisdiction is not relevant in our case. In the result, In conclude that the revisional application must succeed since the demand notice was not in accordance with law and there has not been any valid cause of action, so as to entertain the complaint under section 142 of the Negotiable Instruments act. 7. IN the result, the revisional application stands allowed on merit and the complaint case No. 81/92 pending before the Court of Chief Judicial Magistrate, Alipore stands quashed.