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2006 DIGILAW 918 (MP)

Balkrishna Maheshwari v. Meena @ Chaman Jain

2006-07-27

S.C.SINHO

body2006
ORDER 1. This petition under section 482 CrPC is filed by petitioner for quashing the order dated 6.5.2003 passed in Complaint Case No. 434/03 pending in the Court of Additional Chief Judicial Magistrate, Jabalpur regarding registration of the complaint under section 138 of Negotiable Instruments Act. 2. A complaint has been filed by respondent alleging that petitioner had issued the cheque amounting to Rs. 5 lacs vide Cheque No. 457860 dated 27.7.2002 of State Bank of India Branch Miloniganj, Jabalpur in favour of respondent. The said cheque was deposited by respondent in her bank account i.e. Andhra Bank, Jabalpur on 30.7.2002 which was returned unpaid by the Drawee Bank with instruction of stop payment. Then, again the respondent has submitted cheque in her Bank on 7.1.2003 and it was again returned on 8.1.2003. Being dissatisfied of this act, the respondent had issued legal notice on 5.2.2003 by registered post A.D. which was received by petitioner on 7.2.2003. The cheque was dishonoured and inspite of notice being served, when no payment was made to her she had filed complaint before the Additional Chief Judicial Magistrate and after her statement learned Court vide order dated 6.5.2003 had registered the case under section 138 of Negotiable Instruments Act and issued notices/summons. 3. The only ground pressed before me by Shri Greeshm Jain, counsel for the petitioner that as per section 138 (c) of the Negotiable Instruments Act if cheque is returned unpaid, the person who had issued the cheque shall be punished with imprisonment for a term which may extend to one year or fine but it is mandatory that the payee or the holder in due course of the cheque should make a demand for the payment of money by giving a notice in writing within 15 days from the receipt of information by him from the bank. In this case, respondent has received the information on 8.1.2003 but notice was issued by him on 5.2.2003. The notice was issued beyond mandatory period of 15 days, in view of violation of section 138 (c) of Negotiable Instruments Act, no case should have been registered against the petitioner. Learned counsel on behalf of the petitioner has requested that the order dated 6.5.2003 passed in Complaint Case No. 434/03 pending in the Court of Additional Chief Judicial Magistrate, Jabalpur be quashed under section 482 of CrPC. 4. Learned counsel on behalf of the petitioner has requested that the order dated 6.5.2003 passed in Complaint Case No. 434/03 pending in the Court of Additional Chief Judicial Magistrate, Jabalpur be quashed under section 482 of CrPC. 4. Learned counsel for the petitioner has only placed this point that disputed cheque was received from Andhra Bank on 8.1.2003 whereas respondent has issued registered notice dated 5.2.2003 which was received by petitioner on 7.2.2003. Learned counsel for the applicant has placed reliance on the judgment in S. V. Muthye v. State and other [2002 CriLJ 3219]. Section 138 of the Act, which is material, runs as under: "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 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. Explanation -- For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability." 5. Clause (b) of section 138 of Negotiable Instruments Act makes it clear that the demand notice under clause (b) of section 138 serving of notice within 15 days of the receipt of intimation regarding dishonour of cheque by the payee and failure to make payment within 15 days of receipt of notice issue under clause (b) of section 138 by the drawer are to precede the filing of complaint under section 138. 6. Learned counsel for the petitioner has placed reliance on judgment rendered by apex Court in Premchand Vijay Kumar v. Yashpal Singh and another [2005 (II) MPWN 90 = (2005) 4 SCC 417 ] as under: "But once he gives a notice under clause (b) of section 138, he forfeits such right as 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." Hence, it is clear that in relation to demand notice beyond the statutory period ofl5 days neither section 473 CrPC nor section 5 of Limitation Act, 1963 would apply. Obviously, based on said notice dated 5.2.2003 the respondent did not have cause of action for launching the prosecution against the petitioner under section 138. Filing of complaint before the ACJM, Jabalpur being abuse of process of law the complaint deserves to be quashed under section 482, CrPC. 7. Consequently, the petition succeeds and is allowed. The order dated 6.5.2003 passed in complaint case No. 434/03 pending before the ACJM, Jabalpur regarding registration of complaint accordingly is quashed.