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2009 DIGILAW 108 (JK)

George Antony v. Telco Constructions

2009-03-12

MOHAMMAD YAQOOB MIR

body2009
1. Recall of the order dated 07.05.2008 passed while disposing of petition under Section 561 -A Cr.P.C is sought. 2. Complaint under Section 138 of Negotiable Instruments Act filed on 28.04.2005 before the Court of Judicial Magistrate, 1st. Class, (City Munsiff) and the cognizance taken thereon was sought to be quashed, same was declined vide order dated 07.05.2008. 3. The ground projected for quashment was that the court had acted without jurisdiction. While repelling the contention projected, law laid down in the judgment reported in AIR 1999 SC 3762 was followed. Para 14 & 15 of the said judgment as quoted therein make it clear that the five acts which are the components of the offence under Section 138 of the Negotiable Instruments Act are: (1) drawing of the cheque, (2) presentation of the cheque to the bank (3) returning the cheque unpaid by the drawee bank (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. 4. In para 16 of the reported judgment, it is laid down that for the five different acts done in 5 different localities one of the courts exercising jurisdiction in one of the local five localities can become a place of trial for offence under Section 138 of the Negotiable Instruments Act. 5. In the instant case, notice of demand was issued from Srinagar so is covered by one of the five places mentioned in para 14 as referred to above. 6. Learned counsel would contend, that in the order, recall of which is sought, it is mentioned that giving of notice also gives rise to cause of action when giving of notice does not give rise to cause of action. Same position has been set at rest in the judgment reported in (2001) 6 Supreme Court cases 463 Dalima Cement (Bharat) Ltd vs Galaxy Traders & Agencies Ltd: & Ors the relevant portion of which reads is reproduced herein below:- "To constitute an offence under Section 138 of the Act, the complainant is obliged to prove its ingredients which include the receipt of notice by the accused under clause (b). It is to be kept in mind that it is not the "giving" of the notice which makes the offence but it is the "receipt" of the notice by the drawer which gives the cause of action to the complainant to file the complaint within the statutory period." 7. Same position is also settled in the case D. Vinod Shivapa vs Nanda Belliappa reported in (2006) SCC Vol. VI page 456, relevant para is quoted below. ".... It is not the "giving" of the notice but it is the failure to pay after "receipt" of the notice by the drawer which gives the cause of action to the complainant to file the complaint within the statutory period. It is no doubt true that the receipt of the notice has to be proved, but as held by this Court consistently, refusal of notice amounts to service of notice. Similarly, in a case where notice is not claimed even though sent by registered post, with the aid of Section 27 of the General Clauses Act, the drawer of the cheque may be called upon to rebut the presumption which arises in favour of service of notice." 8. It is true that giving of notice does not give rise to cause of action but it is also settled in the judgment reported in AIR 1999 SC 3762 that five places which include the place of giving notice becomes the place for trial of the offence which position is not altered. 9. Therefore, no fault can be found in the order further more recalling of the order in the given circumstances, is not permissible. No doubt, learned counsel placed reliance on the judgment reported in AIR 1975 SC 1002 wherein petition for quashing proceedings was dismissed but subsequently, another petition was filed after a gap of one and a half years on different cause prevalent at a particular point of time. The petition under Section 561-A Cr.PC was permissible being dependent on a different cause prevalent at a particular point of time. In 1990 SC 1605 same question came up for consideration before the Apex Court. The petition under Section 561-A Cr.PC was permissible being dependent on a different cause prevalent at a particular point of time. In 1990 SC 1605 same question came up for consideration before the Apex Court. Relevant portion of the para 21 of the said judgment reads as under: - "...If any consideration of the facts byway of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstances and the decision has to he arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362." 10. It is implicit that second petition under Section 561 -A Cr.PC can be entertained provided there is change in circumstances and is on a different cause, furthermore is covered by three important conditions incorporated in Section 561 -A Cr.P.C. 11. In the case in hand fresh petition under Section 561 -A Cr.P.C is not filed rightly so, instead Cr.M.P is filed for recall of the order. Whatever stand considered and determined while passing order dated 07.05.2008, same is sought to be reconsidered which in any case is not permissible. Even otherwise jurisdiction of the Judicial Magistrate, 1st. Class is not ousted in the light of judgment reported in AIR 1999 SC 3762. 12. Cr.M.P. for recall of order is found incompetent and misconceived, as such, dismissed.