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2005 DIGILAW 247 (CAL)

PIJUSH KANTI DASGUPTA v. STATE OF WEST BENGAL

2005-04-11

NARAYAN CHANDRA SIL

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Narayan Chandra Sil ( 1 ) BOTH the criminal revisions are taken up together for the sake of convenience and again as those are directed against the same order impugned. By order dated 20. 09. 2004 the learned Judicial Magistrate, 3rd Court, Alipore passed an order in connection with Complaint Case No. C-4415 of 2003 under section 138 of the Negotiable Instruments Act. The maintainability of that petition was challenged by the accused before the learned Magistrate and after hearing both the parties the learned Magistrate was pleased to reject the question of maintainability raised by the accused before him. The question agitated before the learned Magistrate was that the complainant had issued two notices dated 27. 06. 2003 and thereafter dated 21. 07. 2003. ( 2 ) MR. Krishnendu Bhattacharjee, the learned Advocate appearing for the petitioner has submitted that where two notices are issued and the case is filed on the basis of the second notice, the second notice is bad in law and in this connection he has referred to the ratio decided in the case of Sadanandan bhadran vs. Madhavan Sunil Kumar, 1998 SCC (Cri) 1471. It was decided in the case that in a generic and wide sense "cause of action" means every fact which is necessary to establish to support a right or obtain a judgment. Viewed in that context, the following facts are required to be proved to successfully prosecute the drawer for an offence under section 138 of the Act: (a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured; (b) that the cheque was presented within the prescribed period; (c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period ; and (d) that the drawer failed to make the payment within 15 days of the receipt of the notice. ( 3 ) MR. Dipankar Dhar, the learned Advocate appearing with Ms. ( 3 ) MR. Dipankar Dhar, the learned Advocate appearing with Ms. Swati bhattacharjee, the learned Advocate has submitted before me thai he also relies on the judgment passed in the case of S. Bhadran (supra) and he has drawn my attention to paragraph 9 of the said judgment which reads as under :"now, the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too, within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonour, a fresh right -and not cause of action - argues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under clause (b) of section 138, 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 the money within the stipulated time, he would be liable for offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer expires. " ( 4 ) ACCORDING to Mr. Dhar, it was nothing but a letter dated 27. 06. 2003 which is termed by the learned Advocate for the petitioner as the first notice. Mr. Dhar has further clarified that the said letter is just to make the drawer/ petitioner alert for the next action. He has taken me through the contents of the said letter appearing at page 17 of the petition and tries to impress upon me that the intention of the opposite party/drawee would be clear therefrom. Mr. Dhar has further clarified that the said letter is just to make the drawer/ petitioner alert for the next action. He has taken me through the contents of the said letter appearing at page 17 of the petition and tries to impress upon me that the intention of the opposite party/drawee would be clear therefrom. He had also clarified this point that the time-limit in that letter was for seven days which is not the intention of provision of section 138 of Negotiable instruments Act. It is also pointed out by him that in the said 'etter dated 27. 06. 2003 the drawee demanded not only principal amount but the interest thereon whereas the notice dated 21. 07. 2003 is actually sent subsequently when the letter dated 27. 06. 2003 did not yield any result. And in the said notice dated 21. 07. 2003, Mr. Dhar goes on arguing, the specific section of 138 of negotiable Instruments Act and the stipulated period for payment of 15 days in that section are all mentioned. Mr. Dhar has then taken me to para (a) of the prayer made in the petition of the opposite party which appears before me as c. R. R. No. 346 of 2005. In that prayer the petitioner/drawee has prayed for modification of the observation of the learned Trial Magistrate th t the letter dated 27. 06. 2003 "is a civil notice of demand and the cognizance was taken rightly for non-compliance of the notice dated 21st July, 2003 issued under section 138 of the N. I. Act". ( 5 ) I have considered the submission of the learned Advocates for both the parties. I have also gone through the materials placed before me including the order impugned passed by the learned Judge. It is required to make it clear that the C. R. R. No. 3129 of 2004 was filed by the petitioner/drawer for setting aside the order impugned and the C. R. A. N. No. 71 of 2005 was filed by the petitioner for extension of the interim order whereas the C. R. R. No. 346 of 2005 was filed by the drawee/opposite party for modification of the order treating the letter dated 27. 06. 2003 as a civil notice. On a close scrutiny it appears that there are marked difference in between the letter dated 27. 06. 2003 and the notice dated 21. 07. 06. 2003 as a civil notice. On a close scrutiny it appears that there are marked difference in between the letter dated 27. 06. 2003 and the notice dated 21. 07. 2003. The letter dated 27. 06. 2003 does not contain the necessary ingredients of a notice as contemplated under section 138 of N. I. Act, instead it contains some ingredients like the claim for interest which is again not in conformity with the requirements of notice. On the other hand, on a plain reading of the notice dated 27. 06. 2003 it is clear that all the ingredients of a notice as contemplated under section 138 of N. I. Act are contained there. I am absolutely in agreement with the learned Advocate for the opposity party that the letter dated 27. 06. 2003 is actually not a notice in terms of the provisions of section 138 of the Act and the same is nothing short of an intimation to the petitioner to be chary for the next action under the specific provisions of the act. ( 6 ) ALTHOUGH the learned Trial Magistrate described the letter as first notice he had come ultimately to the conclusion that the case is maintainable before him on the ground that the facts of the case decided by the Hon'ble Apex Court and by our High Court, as the citation mentions in his order, are different from the facts of the case pending before him. But in any case that observation is liable to be expunged since in our considered view the letter dated 27. 06. 2003 is not a notice under section 138 of N. I. Act. And this is why the decision made in the case of S. Bhadran (supra) does not appear to be applicable in the instant case. ( 7 ) ACCORDINGLY, the revisional application being No. C. R. R. No. 3129 of 2004 filed by the drawer along the C. R. A. N. No. 71 of 2005 are dismissed. The other revisional application being C. R. R. No. 346 of 2005 filed by the drawee is hereby allowed. ( 8 ) THE paragraph appearing in page No. 3 of the certified copy of the impugned order annexed to the petition starting from the words "first, I shall discuss" ending with the words "the contentions of the learned Counsel for the complainant" is hereby expunged. ( 8 ) THE paragraph appearing in page No. 3 of the certified copy of the impugned order annexed to the petition starting from the words "first, I shall discuss" ending with the words "the contentions of the learned Counsel for the complainant" is hereby expunged. ( 9 ) PARTIES are directed to bear their respective costs. Later. ( 10 ) CRIMINAL Department is directed to supply the xerox certified copy of this order, if applied for, to the learned Advocates for the parties as early as possible. C. R. R. No. 3129/2004 and cran No. 71/2005 dismissed. CRR No. 346/2005 allowed.