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2005 DIGILAW 948 (RAJ)

Firm Naveen Project Ltd. v. State of Rajasthan

2005-03-30

H.R.PANWAR

body2005
JUDGMENT : 1. - By the aforesaid miscellaneous petitions under Section 482 Criminal Procedure Code, the petitioners seek quashing of the criminal proceedings pending in the Court of the Judicial Magistrate, Rawatsar (for short, "the Trial Court" hereinafter) in Criminal Cases No. 184 of 2003, 173 of 2003, 170 of 2003, 171 of 2003 and 172 of 2003. Since the criminal miscellaneous petitions involve identical question of law and facts, they are being decided by this common Order taking S.B. Criminal Misc. Petition No. 1092 of 2004 as a leading case. 2. The facts of all the case, in a succinct, are that on 11.2.2002, non-petitioner No. 2 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act" hereinafter) alleging therein that the cheque issued by the petitioners in favour of non-petitioner No. 2 has been bounced. On this, the complainant issued a notice dated 25.1.2002 to the petitioners but despite notice, no payment had been made. The Trial Court, vide order dated 12.2.2002, took cognizance of the offence under Section 138 of the Act against the petitioners. Aggrieved by the impugned order taking cognizance of the offence, the petitioners have filed the aforesaid criminal miscellaneous petitions. 3. I have heard learned counsel for the parties and perused the orders impugned. 4. The main contention raised by the learned counsel for the petitioners that the notice was issued by the complainant on 25.1.2002 which could not be received by the petitioners prior to 28.1.2002 because 26.1.2002 and 27.1.2002 were the National Holiday and Sunday respectively. The complaint was filed by the complainant on 11.2.2002 and the Trial Court took cognizance of the offence vide order dated 12.2.2002 whereas the 15 days' period of notice expired on 13.2.2002. In such circumstances, the Trial Court ought to have waited till expiry of the notice period or should have returned the complaint for filing the same after expiry of 15 days' notice period. But the Trial Court took cognizance on a pre-mature complaint, therefore, the impugned order is liable to be set aside and the proceedings pending before the Trial Court are liable to be quashed.Section 138 of the Act reads as under :"138. Dishonour of cheque for insufficiency, etc., of funds in the account. But the Trial Court took cognizance on a pre-mature complaint, therefore, the impugned order is liable to be set aside and the proceedings pending before the Trial Court are liable to be quashed.Section 138 of the Act reads as under :"138. Dishonour of cheque for insufficiency, etc., of funds in the account. - 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 provision of this Act, be punished with imprisonment for a term 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 by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him for, 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. The cause of action under the provisos (b) and (c) of Section 138 of the Act for filing complaint cannot be said to arise merely on the cheque being dishonoured but will arise only after giving of notice of demand of the amount of the cheque by payee or holder in due course of the cheque to the drawer of the cheque and coupled with the failure of the drawer of the cheque to pay that amount within 15 days of the date of service/receipt of notice on or by him. In G. Ravi Kumar v. Ravindranath, (1998) 1 Crimes 86 (A.P.), the Andhra Pradesh High Court held as under:- "The cause of action for initiating proceedings under Section 138 of the Negotiable Instruments Act would arise only after expiry of 15 days of receipt of notice by drawer and not from the date of return of said notice without being served on drawer of cheque." 6. In Shakti Travels & Tours v. State of Bihar & Anr., (2002) 9 SCC 415 , Hon'ble Supreme Court has held as under:- "Undoubtedly, the accused has a right to pay the money within 15 days from the date of service of notice and only when he fails to pay, it is open for the complainant to file a case under Section 138 of the Negotiable Instruments Act, 1881. That being the position and in the complaint itself having not been mentioned that the notice has been served, on the assertion made in paragraph 8 of the complaint, the complaint itself is not maintainable." 7. A perusal of the facts on record shows that certain cheques were issued by the petitioners in favour of complainant/non-petitioner No. 2 and on presentation before the bank, the cheques had been dishonoured. The complainant sent registered notice on 25.1.2002 and filed the complaint on 11.2.2002. There were holidays on 26.1.2002 and 27.1.2002 being Republic Day and Sunday respectively. Thus, by no stretch of imagination, it can be said that the service of notice could take effect prior to 28.1.2002. There is no averment in the complaint dated 11.2.2002 as to on which date notice was served on the petitioners. Even if it is assumed that the notice dated 25.1.2002 was served on the petitioners on 28.1.2002, as 26.1.2002 and 27.1.2002 were the holidays, the 15 days' period expired on 13.2.2002 whereas the complaint was filed on 11.2.2002. There is no averment in the complaint dated 11.2.2002 as to on which date notice was served on the petitioners. Even if it is assumed that the notice dated 25.1.2002 was served on the petitioners on 28.1.2002, as 26.1.2002 and 27.1.2002 were the holidays, the 15 days' period expired on 13.2.2002 whereas the complaint was filed on 11.2.2002. For initiating proceedings under Section 138 of the Act, as per proviso (c) thereto, the drawer of such cheque must fail 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 notice.The cause of action for initiating proceedings under Section 138 of the Act arises only after expiry of 15 days of receipt of notice by the drawer and not from the date of the notice. Therefore, the complaint was pre mature and in such an eventuality, the Trial Court ought to have returned the complaint for filing the same on accruing the cause of action, or should have waited till maturity of the notice period, as held by the Hon'ble Supreme Court in Narsingh Das Tapadia v. Goverdhan Das Partani & Anr., (2000) 7 SCC 183 , wherein the Apex Court held that mere presentation of the complaint in the Court cannot be held to mean that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an early date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. However, in the instant case, the Trial Court neither returned the pre mature complaint, nor awaited maturity and, therefore, the order impugned taking cognizance is liable to be set aside. 8. There is yet another aspect of the matter. The complainant has come with the case that the petitioners failed to make payment even after expiry of 15 days stipulated in the notice but he has not mentioned whether the notice was actually served on the petitioners and if served then on what date. 8. There is yet another aspect of the matter. The complainant has come with the case that the petitioners failed to make payment even after expiry of 15 days stipulated in the notice but he has not mentioned whether the notice was actually served on the petitioners and if served then on what date. But non-service of notice cannot be a ground for dismissal of the complaint even before the same was numbered, as held by the Hon'ble Supreme Court in V. Raja Kumari v. P. Subbrarama Naidu & Anr., 2005(1) Apex Criminal 58 : (2004) 8 SCC 774 , wherein the Hon'ble Apex Court held that the Andhra Pradesh High Court was justified in holding that the question whether notice as required under Section 138 of the Act has been served has to be decided during trial and the complaint ought not to be dismissed at the threshold on the purported ground that there was no proper service of notice. 9. Consequently, all the five miscellaneous petitions are allowed. The impugned orders dated 12.2.2002 passed by the learned Trial Court in the aforesaid cases are hereby set aside and the matters are remanded to the Trial Court for passing order of cognizance afresh after expiry of the notice period in the light of the law laid down by the Hon'ble Supreme Court in Narsingh Das Tapadia's case (supra). The stay petitions also stand disposed of.Mis. petitions allowed. *******