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2018 DIGILAW 344 (JK)

Ishtiyaq Ahmad Mir v. Ghulam Nabi Shah

2018-05-29

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. This petition under section 561-A of the Code of Criminal Procedure (for short the Code) seeks quashing of the complaint under section 138 read with section 142 of the Negotiable Instruments Act, for short ( for short the Act) filed by the respondent (complainant) against the petitioner (accused) in the court of learned Judicial Magistrate (Sub Judge), Kupwara. Quashing is also sought of the order dated 04.07.2017, whereby the learned Magistrate has issued process against the petitioner for proceeding against him for the commission of the said offence. 2. The only ground urged by the learned counsel for the petitioner is that the complaint is not maintainable for the reason that the statutory notice required to be issued under Section 138 of the Act by the payee (complainant) has been issued beyond the stipulated period of 30 days. Learned counsel pointed out that as per the complaint and the copy of the notice annexed thereto, the cheque in question was dishonoured by the bank on 20.05.2017, whereas the statutory notice was issued on 20.06.2017, that is, beyond the prescribed period of thirty days from the date of dishonour of the cheque. Learned counsel, thus, argued that the bar contemplated under-Section 138 of the Act applies as no complaint under said section can be filed unless the statutory notice is issued within the prescribed period. Learned counsel cited Supreme Court judgment in SIVAKUMAR V. NATARAJAN (2009) 13 SCC 623 and a judgment of this Court in Farahan Hassan Kitab v. Tariq Ahmad Haji 2013 (3) JKJ 615 [HC]. 3. Learned counsel for the respondents on the other hand, while not denying that the statutory notice was issued after the expiry of thirty days starting from 20.05.2017 the date of dishonour of the cheque, submitted that limitation of 30 thirty days reckons not from the date the cheque is dishonoured by the Bank but from the date when information in this regard is received by the payee. Learned counsel submitted that the information about the dishonour of the cheque was received by the complainant at a later stage and the petition thus involves a question of fact as to when the information was received by the petitioner and cannot be quashed on that score. Learned counsel cites Supreme Court judgment in M/S Munoth Investments Ltd. v. M/S Puittukola Properties Ltd. & Anr., AIR 2001 Supreme Court 2752. 4. Learned counsel cites Supreme Court judgment in M/S Munoth Investments Ltd. v. M/S Puittukola Properties Ltd. & Anr., AIR 2001 Supreme Court 2752. 4. It hardly needs to be stated that no complaint under Section 138 of the Act on account of dishonour of a cheque can be filed, if the conditions prescribed under the proviso thereto are not fulfilled. Section 138 reads: "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 provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], 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 thirty 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 purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.] 5. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.] 5. Under clause (b) of the proviso, the payee or the holder of the cheque is required to issue a demand notice 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. The thirty days' limitation for issuing the demand notice to the drawer of the cheque starts not from the date of dishonour of the cheque but from the date on which the information in this regard is received by the payee or the holder of the cheque. The date of the receipt of information about the dishonour of the cheque involves a question of fact, which, unless admitted, is to be determined at trial of the case. 6. In this case the positive case of the complainant is that the cheque was dishonoured by the bank on 20.05.2017.However, neither it is admitted nor stated as to when the information in this regard was received by the payee, that is, the complainant. This aspect of the matter will have to be determined at the trial of the case and the complainant cannot be deprived of proving this aspect by leading evidence at the trial. The legal position in this regard has been stated by the Hon’ble Supreme Court in M/S Munoth Investments Ltd. (supra), which squarely applies to the case on hand. 7. Viewed thus, since determination of the question of fact in regard to the date of receipt of information about dishonour of the cheque by the complainant is involved in this case, no case for showing indulgence under Section 561-A Cr.P.C. is made out. The petition, therefore, dismissed along with connected MP(s). 8. Record of the trial court be remitted back along with a copy of this order. 9. Interim direction, if any, in force as on date, shall also stand withdrawn.