Research › Search › Judgment

Chhattisgarh High Court · body

2002 DIGILAW 108 (CHH)

ARVIND BHAI SELARKA v. DILIP GOGAD

2002-11-29

FAKHRUDDIN

body2002
ORDER 1. Heard. 2. This revision under section 482 Cr.P.C. has been filed against the order dated 15-6-2002 passed by the First Additional Sessions Judge, Drug in Criminal Revision No. 84/2002 whereby the order dated 23-11-2001 passed by the Judicial Magistrate, Class-I. Drug has been affirmed. 3. The applicant is facing prosecution under section 138 of Negotiable Instrument Act. The allegation against him is that he has issued a crossed Cheque in favour of the complainant and the said cheque was sent to the Bank where on presentation, it was dishonored on the ground that sufficient funds are not available. Notice was sent on 8-4-1999 and it was returned refused on 12-4-1999 and thereafter the complaint has been filed. 4. Learned counsel for the applicant submits that since the notice was not served, 'the complaint is not maintainable. The objection was raised regarding registration of the case on the ground that the notice was not served on him and it was prayed that the applicant be discharged. The learned Magistrate took the cognizance of the complaint and declined to discharge the applicant on the ground that it will be considered only after recording evidence. The applicant preferred revision where it was contended that the notice was nor served. The courts below have examined that the notice was sent and it was refused. The courts below found that the date is put by seal and who has put the seal is matter of recording evidence. The Courts below further noted that the applicant/accused has not disputed that he has not issued the cheque. The courts below also considered the decision in Ashok Yashwant Badeve Vs. Surendra Madhav Rao Nighojakar and another. 5. This court has considered the entire matter afresh. 6. Admittedly, the complaint in the present case has been filed after the cheque on its presentation was dishonoured and thereafter notice was sent to the applicant and the said notice was returned refused and the courts below rejected the prayer for discharge of the applicant on the ground that it is the subject matter of evidence and the prayer for discharge can only be considered after recording evidence. 7. So far as interpretation of the provisions of section 138 are concerned, the Apex Court had an occasion to deal with the matter in case of K Bhaskaran Vs. 7. So far as interpretation of the provisions of section 138 are concerned, the Apex Court had an occasion to deal with the matter in case of K Bhaskaran Vs. Sankaran Vaidhyan Balan and another in which it is held as under : "..........The context envisaged in Section 138 of the Act invites it liberal interpretation for the person who has the statutory obligations to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provisions is made by the legislature. The words in clause (b) of the Proviso to section 138 of the Act show that the payee has the statutory obligation to 'make demand' by giving notice. The thrust in the clause is on the need to 'make demand'. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does." It was further held that : "If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice at the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of section 138 of the Act. It must be borne in mind that the Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure." (Emphasis supplied) 8. A perusal of the said judgment rendered in case K. Bhaskaran (supra) shows that the context envisaged in section 138 of the N.I. Act invites a liberal interpretation for the person, who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The apex court further held that the Court must keep in it's mind that it should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 9. The apex court further held that the Court must keep in it's mind that it should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 9. The High Court of Madhya Pradesh in case of Anil Kumar Haritwal and another Vs. Sant Prakash Gupta had occasion to deal with the similar matter and observed as under "It is pertinent to mention here that in this modem trend, the payments are often made by the cheques or the drafts in the commercial and contractual transactions as payment by cash is risky from the point of view. Even some departments like Income Tax, Commercial Tax etc, issue the instructions that the amount to be paid if beyond the limit prescribed by them, the same be paid by the cheques or the drafts. Therefore, at a time, many cheques are issued and received. The Company, Firm, Society or even a Government in some matters, may be the payee or holder of the cheques and it is not possible for them to appear personally in the Court to make a complaint to the Magistrate. Under the circumstances, the complaint is required to be filed by the authorized person/agent or the power of attorney holder of the payee, so appointed. In that situation, the liberal interpretation for the person, who has the statutory obligation to 'give notice, as he is presumed to be the loser in the transaction must be given. Therefore, even though section 138 is a penal statute, the Court should not adopt such an interpretation, which helps a dishonest evader and clips an honest payee. 10. Having thus considered facts and circumstances, material on record and in view of the judgments K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another and Anil Kumar Haritwal Vs. Sant Prakash Gupta, in the opinion of this Court, there is no illegality committed by the trial Court in passing the impugned order. Consequently, the petition fails and is dismissed. 11. Petition is dismissed. Accordingly, I.A. No. 3555/02 for stay and I.A. No. 4192/02 also stand dismissed. Petition Dismissed.