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2002 DIGILAW 215 (PNJ)

Subash Chander v. Amit Enterprises

2002-02-18

MOHUNTA

body2002
Judgment Mohunta, J. 1. This petition has been filed for quashing of the complaint dated 8.4.1991 and all subsequent proceedings initiated in pursuance of the same. 2. Briefly the facts are that the petitioner issued two cheques dated 22.9.1990 for Rs. 14,918/- and dated 9.10.1990 for Rs. 14,200/- in favour of the respondent/complainant. Both the cheques were dishonoured on 12.12.1990. 3. The respondents issued a demand notice 21.1.1991 asking the petitioner to make good the payment, but the petitioner refused to accept the registered letter on 31.1.1991. Accordingly, a complaint dated 8.4.1991 was filed by the respondent before Chief Judicial Magistrate, Chandigarh, under Section 138 of Negotiable Instruments Act, 1881 who issued summons to the petitioner. 4. Mr. Arora, learned counsel for the petitioner has argued that firstly after a cheque is dishonoured, the demand had to be raised within 15 days of the bouncing of the cheque. However, in the present case, the demand was raised after 40 days. According to the counsel, this is in complete violation of Sections 138(b) and (c) of Negotiable Instruments Act, which are reproduced as under : (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 of 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. 5. From the perusal of the aforementioned Section, it is clear that once a cheque is dishonoured, and the holder of the cheque has been informed by the bank regarding the return of cheque as unpaid, then in that case the holder of the cheque must give a notice in writing to the drawer of the cheque within a period of 15 days from the receipt of information from the bank, asking the drawer to make good the payment. In the present case, the bank informed the respondent on 12.2.1990. However, notice in writing was given after a period of 40 days i.e. on 21.1.1990. In the present case, the bank informed the respondent on 12.2.1990. However, notice in writing was given after a period of 40 days i.e. on 21.1.1990. Thus, it would be clear that the demand was raised after a period of more than 40 days, thereby causing a delay of 25 days, which is completely contrary to the provisions of Section 138(b) of Negotiable Instruments Act, 1881 . 6. The second contention of Mr. Arora is that the demand notices were sent by the respondent-complainant on 21.1.1991 whereas the present complaint was filed on 8.4.1991. According to the learned counsel, this is again a clear-cut violation of Section 142(b) of Negotiable Instruments Act, 1881 , according to which, once the demand notice is sent, the complaint has to be filed within a period of 30 days. Section 142 of Negotiable Instruments Act, 1881 , is reproduced as under : [Text omitted. Ed.) 7. From the bare perusal of the aforesaid Sections, it would be clear that once a demand notice is sent, the complaint, otherwise would be time barred in the present case. Since the complaint was filed after 77 days from the date of issue of demand notice, therefore, the same is hit by Section 142(b) of the Negotiable Instruments Act, 1881 . 8. Reliance has been placed on the decision of this Court in Swatantar Kumar, Prop : M/s. S.N. Enterprises Versus M/s. Harsh Kumar, Adarsh Kumar and another; 1992 (1) Recent Criminal Reports 4, which support the above contention of the learned counsel for the petitioner. 9. Thus, there being violation of Sections 138(b) and (c) and Section 142(b), therefore, I hold that the complaint was hopelessly time barred. 10. Accordingly, I quash the complaint dated 8.4.1991 (Annexure P-71) and all other proceedings taken in pursuance thereof. Petition allowed.