Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 686 (PNJ)

Arora Steel v. Diamond Industrial

2004-07-09

SATISH KUMAR MITTAL

body2004
Judgment Satish Kumar Mittal, J. 1. The petitioner firm (complainant) has filed this petition under Sec.482, Code of Criminal Procedure (hereinafter referred to as the Code) for quashing order dated 30.11.2000 passed by judicial Magistrate, 1st Class, Chandigarh vide which its complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) has been dismissed on the ground that it has failed to serve notice upon the respondent-drawer within a period of fifteen days from the date of dishonouring of the cheque in question as required at the relevant time under Clause (b) of Sec.138 of the Act. It is pertinent to mention here that this clause has been amended vide Act 55 of 2002 and the aforesaid period of fifteen days has been made as thirty days with effect from 6.2.2003. 2. In this case, the respondent drawer was having business dealing with the petitioner firm. He purchased some electrical goods from it and in discharge of his liability issued a cheque dated 25.3.2000 (Ex. C1) for an amount of Rs.40,000/- as part payment. It was an outstation cheque being drawn on Punjab National Bank, Ludhiana. The petitioner firm presented the said cheque with its Bank, namely Punjab and Sind Bank, Sector 40-C, Chandigarh which was sent for collection to the aforesaid Bank at Ludhiana. However, the cheque was dishonoured and the Bank of the respondent-drawer at Ludhiana returned the dishonoured cheque to the Bank of the petitioner firm at Chandigarh vide memo dated 21.9.2000 (Ex. C2 ). On receiving the said memo the Punjab and Sind Bank at Chandigarh issued memo dated 3.10.2000 intimating the petitioner firm about the dishonouring of the cheque. With the said memo, the cheque as well as the memo issued by the Bank of the respondent-drawer were also annexed. After receipt of the said memo dated 3.10.2000, the petitioner firm issued notice dated 9.10.2000 (Ex. C3) upon the respondent-drawer, and when in response thereof, he failed to make payment, the petitioner firm filed the aforesaid complaint. 3. Vide impugned order dated 30.11.2000, the learned Judicial Magistrate dismissed the complaint, while holding that the petitioner firm did not issue notice to respondent-drawer within fifteen days from the date of dishonouring of the cheque, by taking the said date as 21.9.2000. 4. 3. Vide impugned order dated 30.11.2000, the learned Judicial Magistrate dismissed the complaint, while holding that the petitioner firm did not issue notice to respondent-drawer within fifteen days from the date of dishonouring of the cheque, by taking the said date as 21.9.2000. 4. Learned Counsel for the petitioner submitted that by taking 21.9.2000 as the date of dishonouring the cheque, the Trial Court has committed grave illegality, which has resulted into manifest injustice to the petitioner. He further submitted that the Trial Court has completely ignored the fact that the cheque was issued to the petitioner firm at Chandigarh, which was presented by it to its Bank at Chandigarh and the intimation regarding dishonouring of the same was given to the petitioner firm by its bank on 3.10.2000 at Chandigarh, enclosing therewith memo dated 21.9.2000 issued by the Bank of the respondent-drawer at Ludhiana. Learned Counsel for the petitioner submitted that the petitioner firm could not have any knowledge of the memo dated 21.9.2000 until the same was delivered to it by its Bank on 3.10.2000. Therefore, according to him, the starting point of limitation for issuing notice under Clause (b) of Section 138 of the Act should be the date when the Bank, where the cheque was presented, intimated the petitioner about dishonouring of the same. In these circumstances learned Counsel for the petitioner submitted that the impugned order passed by the learned Trial Court, is patently illegal which resulted into miscarriage of justice and the same is liable to be set aside. 5. On the other hand, learned Counsel for the respondent-drawer opposed this petition on two grounds; firstly that against the impugned order the petitioner should have filed revision petition before the Sessions Judge and the instant petition under Sec.482 of the Code is not maintainable and secondly that the date of memo issued by the Bank of the drawer should be taken as the date of starting point of limitation for issuing notice under Clause (b) of Sec.138 of the Act. 6. After hearing the arguments of learned Counsel for the parties, I am of the opinion that this petition deserves to be allowed. It has not been disputed that the cheque in question was outstation cheque, which was drawn at Punjab National Bank, Ludhiana and was presented by the petitioner firm for collection with Punjab and Sind Bank, Sector 40-C, chandigarh. After hearing the arguments of learned Counsel for the parties, I am of the opinion that this petition deserves to be allowed. It has not been disputed that the cheque in question was outstation cheque, which was drawn at Punjab National Bank, Ludhiana and was presented by the petitioner firm for collection with Punjab and Sind Bank, Sector 40-C, chandigarh. The Bank at Ludhiana vide its memo dated 21.9.2000 (Ex. C2)intimated the Bank at Chandigarh about the dishonouring of the said cheque. In turn, the petitioners Bank at Chandigarh, vide memo dated 3.10.2000, intimated the petitioner about the same. The petitioner in his statement as CW1 has clearly stated that on 3.10.2000 he received information from his Bank that the cheque was dishonoured. Thereafter, a legal notice dated 9.10.2000 was issued by him. 7. Section 138 of the Act is reproduced below for ready reference : 138. Dishonour of cheque for insufficiency, etc. The petitioner in his statement as CW1 has clearly stated that on 3.10.2000 he received information from his Bank that the cheque was dishonoured. Thereafter, a legal notice dated 9.10.2000 was issued by him. 7. Section 138 of the Act is reproduced below for ready reference : 138. Dishonour of cheque for insufficiency, etc. , of funds in the amount.-Where any cheque drawn by a person on an 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 that 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 provisions of this Act, be punished with imprisonment for a term which may be extended to two years, 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 by giving a notice in writing to the drawer of the cheque within thirty 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. 8. 8. Clause (b) of Sec.138 of the Act clearly provided that notice shall be issued in writing to the drawer of the cheque within fifteen days (prior to amendment made by Act 55 of 2002 with effect from 6.2.2003) of the receipt of information by him from the Bank regarding the return of the cheque as unpaid. Thus, the starting point of limitation for issuing notice is the date of receipt of information by the holder of the cheque from the bank regarding dishonouring of the cheque. The Trial Court, in my opinion, has wrongly calculated the period of limitation from 21.9.2000 the date when the Bank of the respondent-drawer intimated the Bank of the holder about dishonouring the cheque. That memo was not an information to the petitioner. Thus, the Trial Court has committed grave irregularity which has resulted into miscarriage of justice. In view of this, without going in detail the second argument of the petitioner about maintainability of this petition without first filing the revision, the impugned order is liable to be quashed in the interest of justice as this Court has the inherent power to set aside any order which resulted into miscarriage of justice. 9. In view of the aforesaid, the instant petition is allowed and the impugned order dated 30.11.2000 is set aside. The Trial Court is directed to proceed with the complaint filed by the petitioner in accordance with law. Petition allowed.