Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 1130 (MP)

Chunnilal Sharma v. Vidya Sharma

2007-10-23

B.M.GUPTA

body2007
ORDER 1. This revision is for impugning the order dated 20th February, 2003 passed by the 6th Additional Sessions Judge, Gwalior in Criminal Revision No. 229/01, by which the learned Judge has set aside the order dated 1st June, 2001 passed by the JMFC, Gwalior in Criminal Case No. 1132/98, whereby the learned Magistrate after conducting enquiry on a complaint filed by the petitioner had issued process against the respondent for the offence punishable under section 138 of the Negotiable Instruments Act, 1981 (hereinafter referred to as the Act). The learned Judge has observed that as per the averments in the complaint itself, mandatory requirement of sending and serving of a notice under section 138 of the Act has not been complied with. 2. The proviso (b) as appended to section 138 of the Act goes as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account :-.............. Provided that nothing contained in this section shall apply unless -- (a)......... (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 thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c)......... Explanation: -............." Thus, 30 days notice for making payment is required by the payee, the petitioner herein, to the drawer of the cheque, the respondent herein. Admittedly, previously this time was 15 days but by way of amendment act section 7 of 2002 in place of 15 days, a time of 30 days has been fixed. The crucial point here is as to whether such a demand was made by the petitioner from the respondent or not. 3. On perusal of para 3 and 5 of the complaint, it appears that the cheque was returned by the bank without encashment on 24th July, 1997. Thereafter, on 4th August, 1997 a notice was given by the petitioner to the respondent through registered post acknowledgement due which was returned by the postal authorities without service on the respondent. 3. On perusal of para 3 and 5 of the complaint, it appears that the cheque was returned by the bank without encashment on 24th July, 1997. Thereafter, on 4th August, 1997 a notice was given by the petitioner to the respondent through registered post acknowledgement due which was returned by the postal authorities without service on the respondent. On perusal of the notice enclosed in the file, which has been shown by Shri Singh counsel for the petitioner, it appears that it is written by the postal authorities that the addressee was not found at home and as the time limit of the notice was expiring, the same was returned to the sender (izkIrdrkZ forj.k le; ?kj ugha feyrs le; vof/k lekIr izsf'krh dks okil ). It shows that on account of non-availability of the addressee, the notice was sent back by the postal authorities. On perusal of these averments in the note affixed on the notice, if it is taken as it is and accepted as true, it cannot be observed that the legal requirement as mentioned in aforementioned provision of the Act has been fulfilled. If the notice was denied or by wilful avoidance of the addressee, the respondent herein, the notice was returned by the postal authorities, that could have been considered that the trial is required to conclude as to whether the respondent willfully avoided the service of the notice. But here in the present case, if the averment in the complaint and note affixed on the notice is taken as it is, it appears that there is no demand on behalf of the petitioner from the respondent, that he was to pay the amount within 30 days/15 days, whatever the case may be, else legal action will be taken against him. . 4. That apart, on perusal of the language of the notice as shown by Shri Singh from the copy of the same, which is enclosed in the original case file. it is mentioned in last three lines that it was only informed that within 7 days of the receipt of the notice, addressee was to explain as to why legal proceeding cannot be initiated against him/her in competent Court of law. No demand as required by the aforementioned provision was made on behalf of the petitioner. 5. it is mentioned in last three lines that it was only informed that within 7 days of the receipt of the notice, addressee was to explain as to why legal proceeding cannot be initiated against him/her in competent Court of law. No demand as required by the aforementioned provision was made on behalf of the petitioner. 5. The contention of Shri Singh that at the initial stage of the case, all these things are not required to be seen, may be true or may be accepted in such cases in which some dispute is required to be decided with regard to the service of the notice or demand of the amount as required by law. but in the present case as it is rightly observed by the learned Judge in the impugned order, if the averments in the complaint and the note affixed on the notice themselves are taken to be true, the legal requirement is not fulfilled. Thus, there appears no error in the impugned order. 6. Consequently, the revision is dismissed.