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2002 DIGILAW 128 (JK)

Rohit Khanna v. Punjab National Bank Ltd.

2002-05-02

S.K.GUPTA

body2002
1. Petitioner, by means of this petition, are seeking the quashing of complaint proceedings initiated by the Magistrate after taking congnizance of the offence under Section 138 of Negotiable Instruments Act and issued process against them in exercise of the powers of the court under Section 561-A Cr. P.C. 2. The main plank of the petitioners contention is that, the complainant did not get the cheques cleared given in advance by the petitioners towards the repayment of the loan advances for purchases of a car on the due date. The complainant deposited all the three cheques dated 1-10-1999 No PRQ-637016 amounting to Rs. 4.200/-. cheque dated 1-11-1999 No. PRQ-637017 amount to Rs. 4.200/- and cheque dated 1-12-1999 No. PQR-637018 amounting to Rs. 4,200/- on one date, i.e 25-3-2000 for collection and realisation together contrary to the agreement between the petitioners and respondent at the time of issuance of 20 cheques. Each cheque was for an amount of Rs. 4.200/- (Rupees four thousand and two hundred only) payable to the respondent by first of every month from the account of the petitioners towards the adjustment of the loan, but the complainant instead deposited all the three cheques together on 25-3-2000 without informing the petitioners, which stood dishonoured, resulting into the filing of the complaint under Section 420 RPC and Section 138 of the Negotiable Instruments Act. 3. The sole grievance of the petitioners raised in this petition is that, no notices, as required under law, were served upon the petitioners, demanding the amount of cheques so dishonoured. That the courier service is no service in the eyes of law that too through agent or servant, who is not authorised to receive any post on behalf of the petitioners. It was further pleaded that the notices sent through registered post were returned with the endorsement that the addressee left for Delhi and, in such an event, it could not be said that notice of demand has been served upon the petitioners, that the notice attached with the complaint is not a legal notice and does not conform to the requirement of Section 138 of Negotiable Instruments Act, because the amount demanded is from the date of notice instead of from the date of receipt of notice by the respondent, and, thus, the compliant was not entertainable under Section 138 of the Negotiable Instruments. Act. 4. Mr. Act. 4. Mr. Ravinder Sharma, learned advocate appearing for the respondent, however, submitted that on the basis of the statement made in the complaint, prima facie, there is sufficient material for the court to take cognizance and issue process against the petitioners. 5. Having considered the rival submissions and after examining the assertions made in the complaint, I have no hesitation to come to the conclusion that even if there is no expression or explicit averments in the complaint, court would be justified in taking cognizance of the offence if the ingredients or inferences from the complaint. In the matter of taking cognizance on receiving a complaint, under Section 190)1) (a) of the Code of Criminal Procedure enjoins that Magistrate empowered under Sub-Section (2) of Section 190 of the Code of Criminal Procedure can take cognizance upon the receiving a complaint of facts which constitute such offence. Section 142 of the Act enjoins the conditions for taking the cognizance of the offence punishable under Section 138 of the Act. As regards the contention raised Mr. R.P. Sangra, petitioners advocate, that courier service is no service in the eyes of law, it is significant to point out that under Section 138 of the Act, no mode is prescribed for service of the notice. It is sufficient that the notice is served on the accused. In the instant case, complaint stating that notices were sent as registered post as well as through courier and the service is clearly evident from the POD received back by the complaint from the courier, whereas the notices sent through registered post received back by the complainant from the postal authority with the remarks on both envelopes as "addressee has left for Delhi." This is, however, a question of fact that whether notice was received by the accused or not. On this ground, the complaint cannot be quashed. That apart, even telegraphic notice demanding payment is valid. 6. Another limb of argument put across by the petitioners advocate is that, all the three cheques drawn were payable by first of every month to the respondent from the account of the petitioners in the bank, but the respondent by presenting three cheques at one time on the last date of the month frustrated the very purpose of issuance of monthwise cheques. It may be pointed out that a cheque can be presented any number of time during the period of its validity by payee. On each presentation of the cheque and its dishonour a fresh right, and not cause of action accrues in his favour. The complainant may, therefore, without taking pre-emptory action in exercise of such right under Clause (b) of Section 138 of the Act go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But once he gives a notice under Clause (b) of Section 138, he forfeits such right for in case of failure of the drawer to pay money within stipulated time, he will be liable for the offence and the cause of action for filing the compliant will arise. This contention of the petitioners also does not hold good to grant their prayer for quashing the proceedings. Lastly, it is submitted by the petitioners advocate, that the complainant did not specify the date on which the notice has been received. There is a clear 15 days time provided for payment of the amount due under the cheque from the date of the receipt of the notice regarding dishonour of the cheques issued by the petitioner/ drawers. That it is after the expiry of the period of 15 days from the date of receipt of notice, if the petitioners did not pay amount, the cause of action accrues for filing a complaint. 7. The conditions pertaining to the notice to be given to the drawer, have ben formulated and incorporated in Clauses (b) and (c) of the proviso to Section 138(1) of the Act. On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the Offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature intends that failure on the part of the drawer to pay amount within 15 days of the "receipt" of the said notice. It is, therefore, clear that "giving a notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. But the legislature intends that failure on the part of the drawer to pay amount within 15 days of the "receipt" of the said notice. It is, therefore, clear that "giving a notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer in the correct address. Section 138 of the Negotiable Instruments Act does not prescribe a mode for the service of a notice. Nonetheless, the principle incorporated in section 27 of the General Clauses Act can profitably be imported in a case where the sender has dispatched the notice by post/courier with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that he was not served and that he was not responsible for non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque, who is liable to pay the amount, would resort to the strategy of subterfuge by successfully avoiding notice. The decision of the Apex Court in K. Bhaskaran V. Sankaran Vaidhyan Balan and another, AIR 1999 SC 3762, may be noticed. 8. In the instant case, due notice was issued for payment at correct address, but returned unserved with endorsement that the addressee has left for Delhi and notice sent through courier indicated that the service has been effected through agent of the petitioners. The notices, in such circumstances, are deemed to have been served. A complaint filed within limitation on the basis of such notices and Magistrate taking cognizance of offence punishable under Section 138 of the Act on the basis of such a complaint and issuance of process against the accused, is neither erroneous nor illegal, so as to necessitate the exercising of power under Section 561 -A of the Code of Criminal Procedure. 9. In this view of the matter, I do not find any merit in this petition and is accordingly dismissed. The Magistrate is directed to take up the proceedings and conclude the same as expeditiously as possible. Record be remitted back to the Magistrate forthwith where the parties through their counsel are directed to cause appearance on 13th May, 2002.