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2006 DIGILAW 709 (RAJ)

Abdul Mutalib v. State of Rajasthan

2006-03-01

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-By the instant criminal miscellaneous petition under Section 482 of the Code of Criminal procedure, 1973 ( for short "the Code" hereinafter), the petitioner has sought the relief for quashing the criminal complaint for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act") as also the criminal proceedings initiated by the Judicial Magistrate No. 2, Bikaner (for short, "the trial Court" hereinafter) in Criminal Case No. 596 A / 2002. 2. The facts, relevant and necessary for decision of this criminal miscellaneous petition are that on 19.09.2002, Respondent No. 2 Hazi Sher Mohammed filed a criminal complaint against the petitioner stating therein that being a friend, a sum of Rs. 2,00,000/-was given by him to the petitioner on 20.05.2002 and on the same day, the petitioner gave him a cheque bearing No. Q/502599 drawn on the Bank of Rajasthan. On 16.08.2002, when the said cheque was presented in the bank, it was dishonoured for want of sufficient funds and returned vide memo dated 24.08.2002. A legal notice under Section 138 of the Act was sent to the petitioner on 04.09.2002, which was returned on 11.09.2002 with the endorsement that the addressee was not found. On 19.09.2002, the Respondent No. 2 presented criminal complaint, on which the trial Court, vide order dated 20.09.2002, ordered for recording the statements of the Respondent No. 2 under Section 200 of the Code. The petitioner put in appearance before the trial Court on 01.04.2005 and the trial Court read over the substance of accusation to the petitioner. Hence, this criminal miscellaneous petition. 3. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State. Perused the impugned orders passed by the trial Court. 4. It iscontended by the learned Counsel for the petitioner that in fact the notice was not served on the petitioner and even though a presumption of service is drawn still the unserved notice was received by the Respondent No. 2 on 11.09.2000 and the complaint was filed on 19.09.2002, as such the trial Court erred in law in taking cognizance on a pre-mature complaint 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 vs. 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." In Shakti Travels & Tours vs. State of Bihar & Anr., 2002 (9) SCC 415 , Honble 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." 6. A perusal of the facts on record shows that cheque issued by the accused -petitioner was dishonoured by the bank on 11.09.2002. The notice dated 04.09.2002 was received by the Respondent No. 2 on 11.09.2002 with the endorsement that the addressee was not found. The notice period of 15 days expired on 26.09.2002 and the cause of action arose to the complainant on 26.09.2002 but the complainant filed the complaint on 19.09.2002, i.e., at a pre-mature stage. 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 to 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 Honble Supreme Court in Narasingh Das Tapadia vs. 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, vide order dated 20.09.2002 applied its judicial mind and ordered for recording the statement of the Complainant-respondent No. 2 and vide order dated 01.04.2005 read over the substance of accusation to the petitioner. 10.05.2001, whereas the trial Court ought to have either returned the complaint for filing the same on accruing the cause of action, or should have waited till maturity of the notice period. Instead of returning the complaint or waiting till maturity, the trial Court erred in law and on facts in taking cognizance of the offence under Section 138 of the Act against the petitioner. 7. Consequently, the revision petition is allowed. The orders dated 20.09.2002 and 01.04.2005 passed by the trial Court are set aside. The matter is 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 Honble Supreme Court in Narsingh Das Tapadias case (Supra).