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2002 DIGILAW 416 (PNJ)

Guru Nanak Engineering Works v. Harjinder Singh

2002-04-22

R.C.KATHURIA

body2002
Judgment R. C. Kathuria, J. 1. Petitioner seeks quashing of complaint dated 14.12.1996, Annexure P-l, filed under Sec.138 of the Negotiable Instruments Act (hereinafter referred to as the Act), the summoning order and the consequential proceedings arising out of that complaint. 2. A few facts need to be noticed in order to focus the controversy involved in the present petition. 3. Petitioner, M/s. Guru Nanak Engineering Works through its partner Gurmail singh had issued cheque bearing no.298418 dated 25.6.1996 for Rs.1,58,000/-in the name of complainant Harjinder Singh, drawn on Punjab National Bank, dhuri Branch, District Sangrur, to discharge the liability of debt. At that time petitioner-accused had assured the complainant that he was having sufficient amount in the bank and that on presentation the cheque would be encashed. The complainant then presented the afore-said cheque through his bankers, namely, Punjab and Sind Bank, Salem Tabri Branch, Ludhiana, for encashment but the same was returned with the remarks "insufficient funds" and intimation in that regard was sent to the Punjab and Sind Bank, Salem Tabri Branch, ludhiana, as per Memo Dated 20.9.1996 thereafter, the complainant contacted the petitioner-accused and informed about the dishonouring of the cheque by his banker, upon which the accused told him that he should present the cheque again in the last week of October, 1996 and assured him that then the same would be encashed. Complainant presented the cheque to his bankers for encashment but it was again dishonoured and returned with the remarks "insufficient funds" and intimation in that regard was received from the Punjab and Sind Bank, Salem Tabri Branch, Ludhiana, on 9.11.1996. Thereafter complainant through his counsel got served registered notice dated 14.11.1996 upon the petitioner-accused, calling upon him to pay the amount of dishonoured cheque within a period of 15 days but the said notice was received back undelivered with the remarks "despite visits time and again, did not meet at the house". Then the complaint (Annexure P-1) was filed and the learned magistrate summoned the petitioner-accused to face trial for committing the offence under Sec.138 of the Act. It is under these circumstances that the present petition was filed. 4. Then the complaint (Annexure P-1) was filed and the learned magistrate summoned the petitioner-accused to face trial for committing the offence under Sec.138 of the Act. It is under these circumstances that the present petition was filed. 4. Counsel representing the petitioner, while seeking quashing of complaint (Annexure P-l) and the subsequent proceedings arising there from, has made the following submissions : (i) that no notice was received by the petitioner from the complainant-respondent till the filing of the present petition and for that reason, there has been non-compliance of the provisions of Sec.138 of the Act which vitiates the proceedings. (ii) that Tarlochan Singh, who was a dismissed employee of the Punjab Financial Corporation, was employed by the petitioner-accused at his workshop and during the period of 2-1/2 years he worked under the petitioner, he had collected huge amount. When he was asked to render the accounts, it was found that a sum of Rs.2,97,500/- was due to the concern of the complainant and the said Tarlochan Singh had assured to make payment of the amount found due to the firm of the accused but he failed to do the same, despite the fact that with the help of Combine, Kartar make, bearing registration No. PCS-4239 he had earned income pertaining to five seasons and further sold the said harvester, thereby committing a fraud of Rs.7,72,500/- about which a report addressed to the S. S. P. Sangrur was made by the complaint. (iii) that civil litigation had also taken place with Tarlochan Singh, who happens to be brother-in-law of the complainant, with regard to possession of harvesting combine and said Tarlochan Singh fabricated the cheque in question in the name of Harjinder Singh and on that basis, false complaint was filed before the Magistrate. 5. (iii) that civil litigation had also taken place with Tarlochan Singh, who happens to be brother-in-law of the complainant, with regard to possession of harvesting combine and said Tarlochan Singh fabricated the cheque in question in the name of Harjinder Singh and on that basis, false complaint was filed before the Magistrate. 5. In insurance to the notice given to the respondent-complainant, reply dated 13.7.1998 has been filed by him wherein the stand taken from the side of the petitioner was controverted it was explained by the respondent that he wanted to purchase harvesting combine from the petitioner and paid Rs.1,58,000/- and as the deal could not be finalised with the petitioner, the amount paid was required to be returned to him and in order to meet that liability, cheque No.298418 dated 25.6.1996 for the afore-said amount was issued to him which on presentation was dishonoured, which clearly shows that the petitioner had committed offence under Sec.138 of the Act and the respondent had to file the complaint, Annexure P-1. 6. I have heard the counsel representing the parties. 7. Counsel representing the petitioner-accused while seeking quashing of the fir pressed the afore-stated grounds. Petitioner has claimed that at no stage, he had received any notice requiring him to make payment of the cheque amount of Rs.1,58,000/- in terms of requirement of Sec.138 of the Act and for that reason the complaint Annexure P-l deserves to be quashed. 8. In order to appreciate the respective submissions of the parties, notice has to be taken of the provisions of Sec.138 of the Act which read as under. "138. Dishonour of cheque for insufficiency etc. 8. In order to appreciate the respective submissions of the parties, notice has to be taken of the provisions of Sec.138 of the Act which read as under. "138. Dishonour of cheque for insufficiency etc. of funds in the account; when any cheque drawn by a person on account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt, or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one year, or with fine which may extend to twice the amount of the cheque or with both : provided that nothing contained in this section shall apply unless : (a) the cheque has been presented to the bank, within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (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 of 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. Explanation- For the purpose of this section "debt or other liability means a legally enforceable debt or other liability. " 9. Explanation- For the purpose of this section "debt or other liability means a legally enforceable debt or other liability. " 9. A reading of the above provisions of the Act leave no manner of doubt that in order to bring the case within the ambit of Sec.138 of the Act, complainant is required to establish that cheque in question was presented to the bank within six months from the date it was drawn or within the period of its validity whichever is earlier and further that a demand for the payment of the amount was made by giving notice in writing to the drawer of the cheque within 15 days of the receipt of the information from the bank regarding dishonour of the cheque and that the drawer of the cheque has failed to make payment of the amount within 15 days of the receipt of the notice. In the present case, definite allegations have been made by the complainant in the complaint that he had presented the cheque to the bank at the first instance but the same was dishonoured with the remarks "insufficient funds" and thereafter, his bankers had returned the cheque vide memo, dated 20.9.1996. On receipt of this intimation complainant contacted the petitioner-accused and at his assurance that the cheque on being presented again would be honoured by the bank; complainant again presented the cheque in the last week of October, 1996 but against it was returned back with the remarks "insufficient funds" with the memo of the bank received by the complainant on 9.11.1996. Faced with this situation, complainant through his counsel had issued registered notice dated-14.11.1996 upon the petitioner-accused, calling upon him to make payment of the amount within 15 days of the receipt of notice but the same was received back undelivered with the remarks "despite visits time and again, did not meet at the house". This report of the postal authorities leaves no manner of doubt that petitioner-accused evaded service of notice sent by the complaint and therefore, it has to be presumed that the notice had been duly served upon him. The stand taken by the petitioner is that no notice was received by him from the complainant for non-compliance of Sec.138 of the Act in this regard. The stand taken by the petitioner is that no notice was received by him from the complainant for non-compliance of Sec.138 of the Act in this regard. Therefore, on his own showing, a factual dispute with regard to service of notice has been raised by him and even if the stand of the petitioner is taken at its face value, this question has to be decided after allowing opportunity to the parties to adduce evidence. The question of facts as such cannot be gone into in this petition under Sec.482 Cr. P. C. 10. Otherwise also, definite accusations against the petitioner-accused are that after the cheque was dishonoured at the first instance, petitioner-accused had asked the complainant to present the cheque again. A reading of clause (a) of proviso to section 138 of the Act would reveal that the payee can successfully present the dishonoured cheque during the period of its validity and dishonour of a cheque on each occasion would furnish a fresh cause of action. The cause of action would be deemed to have accrued to him on drawers failure to pay the amount as per demand notice sent to him within the prescribed period of 15 days from the date of receipt of the notice. This question again would have to be decided during the course of the trial because of the total denial of receipt of notice as per the stand taken by the petitioner-accused. 11. During the course of arguments, a reference was made to a judgment of this Court in Naurattan Jain V/s. ,m/s. Capital Leasing and Finance Co. , chandigarh, 1997 (1) R. C. R.633 wherein the question of service of notice within the statutory period of 15 days upon the drawer was agitated and it was observed that it is a matter to be decided during trial as to when the notice was despatched and when the same was received by the petitioner in that case. Reference was also made to a judgment of the Madhya Pradesh High court in Premlata Chaddha V/s. Surendra Kumar Lallu Lal Soni, 1998 (3) RCR (Criminal) 711 wherein on request of the drawer the cheque was presented again but was again dishonoured and therefore, it was held that successive causes of action can arise on repeated presentation and dishonour of cheque. Taking into account the above-noted circumstances, there is absolutely no merit in the stand taken in the petition and I find no ground to quash the complaint. 12. Coming to the other allegation of fraud committed by Tarlochan Singh who is stated to be brother-in-law of the complainant, the same cannot be decided in this petition in view of the definite stand taken from the side of the respondent that he had made payment of Rs.1,58,000/- to the petitioner for the purchase of harvesting combine and when the deal could not be finalised petitioner-accused chose to return the afore-said amount and issued the cheque in question to him which was dishonoured by the bank twice. For the reasons recorded above, the petition fails and the same is dismissed.