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2002 DIGILAW 366 (AP)

D. Nagaraj v. S. Balaram

2002-03-06

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C. Y. SOMAYAJULU, J. ( 1 ) 1st respondent filed a private complaint under Section 138 of the Negotiable Instruments Act (for short the Act) against the petitioner alleging that the cheque dated 24. 3. 1999 issued by the petitioner in discharge of the debt due to him was dishonoured and that in spite of his sending statutory notice informing him about the dishonour of the cheque and demanding payment of the amount covered by the cheque, petitioner did not make the payment. The same was taken on file by the learned Magistrate. ( 2 ) PETITIONER who is the accused in the said complaint filed this petition under Section 482, Cr. P. C. to quash the proceedings in the C. C. on the ground that there is no legally enforceable debt due from him to the 1st respondent as the same is barred by time and also because averments in the complaint do not disclose that statutory notice of dishonour was served on the petitioner. Which is the sine qua non for initiation of criminal proceeding by relying on M. S. Shakti Travel and Tours v. State of Bihar and Anr. , 2000 (7) Supreme 90 , and Rukhmaniraj Yarn Co. v. Thangapratap Spinning Mills (P) Ltd. , II (2001) BC 295=2001 (1) ALD (Criminal) 371 (Madras ). It is his contention that since the office copy of the notice allegedly sent to the petitioner shows that 1st respondent demanded payment within seven days, but not within 15 days as contemplated by Section 138 of the Act. The said notice is an invalid notice, and for that reason also the complaint is liable to be quashed. ( 3 ) THE contention of the learned Counsel for the 1st respondent is that statutory notice of dishonour was in fact sent by registered post, but as the 1st respondent did not receive the postal acknowledgement or the returned notice, he addressed a letter to the postal authorities complaining about the same, and since the notice was sent by registered post the presumption is that the petitioner had received the said notice, and relied on Indian Bank v. Datla Venkata China Krishnam Raju, AIR 1991 SC 908 , and Attabira Regulated Marketing Committee v. Ganesh Rice Mills, 1996 (9) SCC 471 , in support of the said contention. Relying on Ravinder Kumar Mahajan v. Sohanlal, 1998 (2) A. L. D. (Criminal) 168 (Pandh), and Satyavan Chaplot v. Rajendra, 1998 (2) A. L. D. (Criminal) 868 (Rajasthan), he contended that merely because in the statutory notice after dishonour, 1 st respondent demanded payment in seven days, the same does not become an invalid notice. Relying on Jiwanlal v. Rameshwarlal, AIR 1967 SC 1118 , he contended that since issuance of a cheque towards repayment of debt amount, to an acknowledgement of the debt, fresh period of limitation starts from the date of issuance of the cheque, and so it cannot be said that there is no legally enforceable debt due to the 1st respondent because the borrowing was on 27. 1. 1996 and the cheque is dated 28. 11. 1998 and the complaint was filed in 1999. ( 4 ) I am unable to agree with the contention of the learned Counsel for petitioner that there is no valid statutory notice because payment was demanded within seven days, of receipt of the notice, but not within 15 days as contemplates Section 138 of the Act. Clause (b) to proviso to Section 138 of the Act contemplates a notice of demand in writing being issued by the payee or the holder in due course of the cheque, to the drawer of the dishonoured cheque within 15 days of receipt of information from the Bank that the cheque was returned unpaid. It does not lay down that the said notice should contain a demand for payment within a particular period but only contemplates a demand for payment of the amount covered by the dishonoured cheque. Clause (c) to proviso to Section 138 of the Act lays down that if the drawer of the cheque fails to make the payment within 15 days from the date of receipt of notice of demand, made by the payee or the holder in due course, a complaint has to be made within one month thereof. Therefore, the cause of action for filing a complaint arises 15 days after the statutory notice of demand, after dishonour, was served on the drawer and that cause of action survives only for one month. Therefore, the cause of action for filing a complaint arises 15 days after the statutory notice of demand, after dishonour, was served on the drawer and that cause of action survives only for one month. Therefore, merely because the 1st respondent made a demand to the petitioner to pay the amount covered by the returned cheque within seven days from the date of receipt of notice, it cannot be said that the said notice is improper. In fact in Ravinder Kumar Mahajan (supra) and Satyavan Chaplot (supra) relied on by the learned Counsel for 1st respondent also it is held that statutory notice demanded payment within seven days of receipt of the notice is not invalid. ( 5 ) THE averments in the complaint show that 1st respondent got issued a legal notice dated 30. 3. 1999 to the petitioner through his Counsel. The list of documents filed along with the complaint shows that office copy of the legal notice and the postal receipt evidencing dispatch of the said notice by registered post were filed along with the complaint. The contention of the learned Counsel for the petitioner is that postal receipt mentioned in the list of documents was in fact not filed, and in its place a letter said to have been addressed by the 1st respondent to the Postal Department, complaining that he did not receive the acknowledgement, or the notice addressed to the petitioner, only was filed. Whether postal receipt for the notice sent by registered post is filed into Court or not the fact remains that there is a clear averment in the complaint that appellant sent the statutory notice of demand after intimation of dishonour by registered post, and that he did not receive the acknowledgement or the original notice addressed to the petitioner. Therefore, as per Section 114 of the Evidence Act and also the General Causes Act, a presumption can be drawn that the registered notice was received by the addressee. In fact the Supreme Court in Indian Bank case (supra) and Ganesh Rice Mills case (supra) relied on by the learned Counsel for 1st respondent, raised such presumption. No doubt the said presumption is a rebuttal one. So the question as to whether the petitioner in fact had received the notice sent by registered post or not, can be decided only after trial. No doubt the said presumption is a rebuttal one. So the question as to whether the petitioner in fact had received the notice sent by registered post or not, can be decided only after trial. In view of the averments in the complaint, which have to be taken as prima facie true for the purpose of proceedings under Section 482, Cr. P. C, it can be taken that statutory notice of demand, after dishonour of the cheque, was sent to the petitioner. ( 6 ) IT is no doubt true that cause of action for filing of the complaint arises fifteen days after service of statutory notice of demand after dishonour of the cheque was served on the drawer. In view of the legal presumption available to the 1st respondent in case of notices sent by registered post, it can be presumed that the notice was served within two or three days after it was registered in the post office. Therefore, the cause of action for filing the complaint can be taken to have arisen about two or three days after statutory notice was registered in the post office. Since it is not the case of the petitioner that the complaint is filed beyond 30 days after service of statutory notice on him, it has to be taken that the complaint was filed within the period of limitation. As stated above since the presumption is a rebutable presumption, depending on the evidence adduced by the parties during trial, the Trial Court has to decide whether notice was in fact served and not. But the complaint cannot be quashed on the ground that notice was not served on the petitioner. In the facts and circumstances of this cases M/s. Shakti Travel and Tours Limited, (supra) and Rukhmaniraj Yarn Co. (supra) relied on by the learned Counsel for petitioner have no application to this case. ( 7 ) SECTION 139 of the Act, lays down that the Court shall presume that the dishonoured cheque was issued in discharge of a legally enforceable debt or liability, which means that the accused has to prove that there is no legally enforceable debts or liability on his part. The Supreme Court in MM. ( 7 ) SECTION 139 of the Act, lays down that the Court shall presume that the dishonoured cheque was issued in discharge of a legally enforceable debt or liability, which means that the accused has to prove that there is no legally enforceable debts or liability on his part. The Supreme Court in MM. T. C. Limited v. Medchl Chemicals and Pharma (P) Ltd. , I (2002) BC 280 = VII (2001) SLT 83= air 2002 SC 182 , held that since the burden of proving that there was no existing debt or liability, is on the accused, which has to be discharged at the time of trial, merely on the basis of the averment in the petition to quash the proceedings filed under Section 482, Cr. P. C. , a complaint cannot be quashed. Moreover, since in Jiwanlal case (supra) relied on by the learned Counsel for 1st respondent the Supreme Court at page 1122, Para 8 held cheque is an acknowledgement of the payment in the handwriting of the person giving the cheque. It cannot prima facie be said that there is no legally enforceable debt by the date of filing of the complaint. Hence, I find no grounds to quash the complaint. ( 8 ) IN the result, the petition is dismissed.