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2009 DIGILAW 654 (JK)

Gh. Nabi Shah v. Mohd. Amin Bhat

2009-12-18

GH.HASNAIN MASSODI

body2009
1. Challenge is to the order of learned Sessions Judge Srinagar dated 19.08.2006 in Revision petition titled Gh. Nabi Shah v. Mohammad Amin Bhat whereby learned Sessions Judge has accepted the revision petition filed by the respondent herein against the order of trial Magistrate dated 27.2.2006 taking cognizance in complaint titled Gh. Nabi Shah v. Mohammad Amin Bhat. 2. Facts relevant to the disposal of criminal revision in hand, are that the petitioner on 27.2.2006 filed a complaint before learned Chief Judicial Magistrate Srinagar alleging that cheque No.04143991 CAL/FL/B/2001 dated 13.8.2005 issued by the respondent had been returned unpaid on the ground that "no sufficient funds" were available in the account of the respondent to make the payment. The learned Chief Judicial Magistrate in turn transferred the complaint to City Magistrate Srinagar for its disposal under law. The petitioner alleged that despite notice to the respondent as required under section 138 of Negotiable Instrument Act, 1881 (hereinafter called the Act), the respondent had failed to make the payment to pay the cheque amount of Rs.1,00,000/- to the petitioner and that the respondent as such had committed offence punishable under the Act. The petitioner appended with the complaint copies of three notices issued by the petitioner through his counsel dated 28.9.2005 and 30.1.2006 as also other relevant record. Learned City Magistrate on 27.2.2006 after recording statement of the complainant and one witness, issued summons against the respondent/accused. 3. The respondent after causing his appearance questioned legality of order dated 27.2.2006 recorded by learned City Magistrate Srinagar through medium of a criminal revision before learned Sessions Judge Srinagar. The order dated 27.2.2006 was assailed inter alia on the grounds that the learned trial Magistrate without recording satisfaction as regards the offence disclosed by the complainant had proceeded in the matter and that the provision of section 138 of the Act were not satisfied before filing the complaint. It was insisted that the petitioner had failed to issue notice in terms of section 138 of the Act, to the respondent and on this ground alone the complaint was liable to be held not maintainable. It was insisted that the petitioner had failed to issue notice in terms of section 138 of the Act, to the respondent and on this ground alone the complaint was liable to be held not maintainable. It was also averred that the petitioner on his own showing had submitted the cheque twice and issued two notices to the respondent making a demand of payment to the cheque amount and that in view of law laid down in AIR 1998 SC 3043, the petitioner by his own conduct had disentitled himself from making complaint under section 138 of the Act. 4. Learned Sessions Judge found that the notice of demand mandatorily required to be issued in terms of section 138, proviso clause - (b) prior to filing of the complaint within 30 days of return of the cheque as unpaid, was not issued by the petitioner. Learned Sessions Judge opined that the learned City Magistrate in disregard of the mandate of law laid down in section 138 and 142 of the Act, had taken cognizance; that the impugned order was bereft of legal sanctity and liable to be set aside. 5. Chapter XVII of the Act, 1881 pertains to penalties in case of dishonour of certain cheques for insufficiency of the funds in the account. Section 138 reads as under:- "S.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 parson 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 be extended to two years) or with fine which may extended to twice the amount of the cheque, or with both." 6. Proviso to section 138, however, makes the aforesaid provision applicable subject the following conditions:-. Proviso to section 138, however, makes the aforesaid provision applicable subject the following conditions:-. I) The cheque is presented within a period of six months from the date of which it is drawn or within a period of its validity, whichever is earlier. II) The payee or the holder in due course of the cheque as the case may be, make a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. III) The drawer of the cheque fails to make the payment of said amount of money to the payee or as the case may be, to the holder in due course of the cheque within 15 days of the receipt of the said notice. 7. Section 142 of the Act also needs to be noticed. Section 142 lays down that the cognizance of any offence punishable under section 138 of the Act, is to be taken only upon a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque. It is also laid down that the court is to take cognizance of any offence punishable under section 138 only when the complaint is made within one month from the date on which the cause of action arises under clause (c) of the proviso to section 138. However, the room is made for filing of the complaint even after prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within such period. 8. Having noticed the law relevant to the controversy, it would be appropriate to revisit the facts discernable from the complaint and the record. 9. However, the room is made for filing of the complaint even after prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within such period. 8. Having noticed the law relevant to the controversy, it would be appropriate to revisit the facts discernable from the complaint and the record. 9. The petitioner in the complaint alleged that the respondent owed the petitioner an amount of Rs.1,92,000/-and that the respondent issued cheque in question on 13.8.2005 drawn on J&K Bank Ltd. Branch Kargil (Ladakh) for an amount of Rs.1,00,000/- Though the petitioner in the complaint did not make mention of the rest of the amount i.e Rs.92,000/- recoverable from the respondent, yet from the documents annexed with the complaint it appears that the respondent issued one more cheque bearing No.04143992 CAL/FL/B/2001 dated 19.8.2005 also drawn on J&K Bank Ltd. Branch Kargil (Ladakh) for the rest of amount i.e Rs.92,000/-. The petitioner presented both the cheques to his banker namely J&K Bank branch Buchpora for collection. Both the cheques were returned without payment vide bank memos dated 29.12.2005 with the report that the funds in the account of respondent were found `not sufficient". The petitioner issued two notices on 28.9.2005 under registered cover through his lawyer in respect of cheque for an amount of Rs.92,000/- bearing No.04143992 and cheque for an amount of Rs.1,00,000/- under No.04143991. However, the respondent failed to make payments pursuant to the demand notice. It appears that the petitioner did not file any complaint after the respondent failed to act upon notices dated 28.9.2005 but resubmitted the cheques to its banker for collection. The cheques were returned unpaid vide memos dated 29.12.2005. The petitioner thereafter issued a fresh demand notice in terms of section 138 proviso clause (b) only in respect of cheque No.04143992. The petitioner ignored to issue the demand notice in respect of cheque No.04143991 for the amount of Rs. l ,00,000/- subject matter of the complaint. 10. The cheques were returned unpaid vide memos dated 29.12.2005. The petitioner thereafter issued a fresh demand notice in terms of section 138 proviso clause (b) only in respect of cheque No.04143992. The petitioner ignored to issue the demand notice in respect of cheque No.04143991 for the amount of Rs. l ,00,000/- subject matter of the complaint. 10. The petitioner for the reasons best known to him, restricted the complainant to cheque No.04143991 CAL/FL/B/2001 in the amount of Rs.1,00,000/- and made a prayer before trial Magistrate that the respondent be dealt with in accordance with the law for his having drawn a cheque without sufficient funds in his bank account and that the cheque amount of Rs.1,00,000/- with damages also assessed at Rs.1,00,000 and the interest @ 12.5% be recovered from the respondent. The complaint was preferred without a demand notice having been issued to respondent in terms of section 138 proviso (b) of the Act. It may be stated, at the cost repetition, that the communication regarding non payment on account of insufficient funds was received by the petitioner some time after 29.12.2005 and the demand notice in terms of section 138 proviso (b) was to be given within one month from the receipt of the communication. The complaint obviously was filed oblivious to the mandate of law, did not satisfy requirements of proviso to section 138 and was thus not maintainable. Reliance of law laid down in criminal reference No. 10 of 2005 titled Mool Raj v. Mulkh Raj is grossly misplaced. The case deals with the situation where the notice was given by the payee of the cheque in question by a registered post but its receipt by the respondent was in dispute. Again, Honble Apex Court judgement in Appeal (crl.) 767/2007 titled C.C.Alavi Haji v. Palapetty Muhammad & Anr. Decided on 18.5.2007, is also of no help to the petitioner as in this case as well, the controversy was with regard to service of demand notice and the general presumption of service under section 27 of the General Clauses Act 1897 as also section 114 of the Evidence Act. It was held that under aforesaid provisions, a presumption of service of notice would arise when the notice was sent on the correct address by the registered post. Same is true about the law laid down in 1999 Cr. L. J 4606 and (2006) 6 SCC 456. It was held that under aforesaid provisions, a presumption of service of notice would arise when the notice was sent on the correct address by the registered post. Same is true about the law laid down in 1999 Cr. L. J 4606 and (2006) 6 SCC 456. Here is a case where no demand notice at all has been sent by the petitioner to the respondent. Learned Sessions Judge Srinagar thus was right in observing that the complaint because of non issuance of requisite notice in terms of aforesaid provision of the Act, was not maintainable. 11. This apart the order dated 27.2.2006 of the learned City Magistrate is also not in conformity with the law. The averments in this regard though made in the revision petition before learned Sessions Judge Srinagar, appear not to have been dealt with as the complaint was held not maintainable on the grounds other than this ground. 12. The Magistrate before whom a complaint is presented, is required to follow procedure laid down in chapters XVI and XVII of the Code of Criminal Procedure. The Magistrate after adhering to the requirements laid down in the chapter, is to commence the proceedings in accordance with the chapter XVII of the Code. Section 204 makes it incumbent upon the Magistrate to record his satisfaction regarding existence of sufficient grounds for proceedings in the complaint and once such satisfaction is recorded, only thereafter to issue process against the accused. The condition precedent for exercise of the power under section 204 is taking cognizance of an offence and unless cognizance has been taken, the Magistrate has no power to issue the process. It presupposes that the Magistrate should be prima-facie first satisfied that the material before Magistrate discloses commission of an offence and once such satisfaction is recorded, the Magistrate is to proceed in the matter. In the present case, learned City Magistrate in the order dated 27.2.2006 without recording such satisfaction has proceeded to issue process against the respondent/accused. The order dated 27.2.2006 thus does not satisfy the legal requirements embodied under section 204 Code of Criminal Procedure and the threshold order declaring cognizance of the offence and issuance of process against the accused is thus liable to be set aside. 13. For the reasons discussed above, there is no merit in the Revision Petition in hand. The order dated 27.2.2006 thus does not satisfy the legal requirements embodied under section 204 Code of Criminal Procedure and the threshold order declaring cognizance of the offence and issuance of process against the accused is thus liable to be set aside. 13. For the reasons discussed above, there is no merit in the Revision Petition in hand. The revision petition is accordingly dismissed and the order of learned Sessions Judge Srinagar dated 19.8.2006 is upheld. Registry to send down the record alongwith the copy of this order.