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2006 DIGILAW 493 (BOM)

Salvaji Prabhakar Rao v. State of A. P.

2006-03-29

P.S.NARAYANA

body2006
JUDGMENT Heard Sri Jitender Rao, the Counsel for petitioner and Sri Venkat Reddy, the Counsel for R.2-complainant and the learned P.P. 2. The only question raised by the Counsel for petitioner Sri Jitender Rao is that there was no issuance of statutory notice as contemplated by Section 138 of the Negotiable Instruments Act (hereinafter in short referred to as 'N.!. Act'). The learned Counsel would maintain that even if the allegations made in the complaint, if taken on their face value, in view of the specific allegations, made that a notice was straightaway issued by way of paper publication, the same cannot be said to be in compliance with the provisions of the N.I. Act. 3. The learned Public Prosecutor however would contend that these aspects may have to be gone into at the appropriate stage. 4. Sri Venkat Reddy, the learned Counsel representing R.2-complainant would submit that it is no doubt true that there is no specific allegation in the complaint that attempts were made to effect service before making the paper publication but these are all factual aspects which may have to be gone into at the appropriate stage. The learned Counsel also placed strong reliance on the decision of this Court in D. Nagaraj Vs. S. Balaram, 2002(2) ALT (Cri.) 22 (A.P.). 5. Heard the Counsel. 6. The relevant portion of the complaint filed by R.2-complainam reads as hereunder :- "That 'the accused has issued a cheque bearing No.CA No.826307, dated 15-2-1994 for Rs.10,000/- to the complainant for repayment of the due amount to the complainant. The complainant presented the said cheque at Andhra Bank, Mancherial and the same was sent to Kakyankhani Branch (0803) of Andhra Bank for collection. But the Branch Manager of Andhra Bank, Kalynkhani Branch returned the cheque along with a memo dated 27-7-1994 stating that the cheque cannot be honoured due to insufficient of funds. On receiving the cheque and dishonour memo, the Branch Manager of Andhra Bank, Mancherial sent intimation dated 1-8-1994 to the complainant. That the complainant issued a notice within statutory period of 15 days through paper publication in Adilabad District edition of Eenadu dated 11-8-1994. After publication of notice and after expiry of 15 days, grace period the accused approached the complainant to wait for 15 days, to enable him to pay the cheque amount. But no payment was made by the accused to the complainant. After publication of notice and after expiry of 15 days, grace period the accused approached the complainant to wait for 15 days, to enable him to pay the cheque amount. But no payment was made by the accused to the complainant. Hence the accused is liable for punishment under Section 138 and 142 of N.I. Act.” 7. On a careful reading of the allegations made in the complaint it is clear that in Para 3 it was specified that the complainant issued a notice within the statutory period of 15 days through paper publication in Adilabad District edition of Eenadu dated 11-8-1994. This is the specific stand taken by the complainant respondent No.2 herein. No doubt strong reliance was placed on the decision of this Court in D. Nagaraj’s case (supra) wherein the learned Judge of this Court held at Para 6 as hereunder:- “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 notice 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 or 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 case M/s. Shakti Travel and Tours Limited ( 2000(7) Supreme 90 ) and Rukhmaniraj Yarn Co. (2001(1) ALD (Cri.) 371 (Mad.) relied on by the learned Counsel for petitioner have no application to this case.” The aforesaid case is distinguishable on facts. In the facts and circumstances of this case M/s. Shakti Travel and Tours Limited ( 2000(7) Supreme 90 ) and Rukhmaniraj Yarn Co. (2001(1) ALD (Cri.) 371 (Mad.) relied on by the learned Counsel for petitioner have no application to this case.” The aforesaid case is distinguishable on facts. Apart form this aspect of the matter, while exercising powers under Section 482 of the Code of Criminal Procedure prima facie the allegation made in the complaint it is clear that straightaway publication was made in Eenadu Newspaper this cannot be said to be in compliance with any of the statutory provisions of the N.I. Act. Hence this Court is of the considered opinion that in as much as the provisions of Section 138 of the Act aforesaid had not in accordance with law and hence the same is liable to be quashed. Accordingly the criminal petition is hereby allowed.