B. Kannan vs K. Balakrishnan

Pratap Singh, J.—The accused in C.C.89 on the file of Judicial Magistrate No. I, Kancheepuram, has filed this petition u/s 482 Criminal

Procedure Code, praying to call for the records in the aforesaid case and quash the same.

The Respondent has filed the private complaint against the Petitioner for offence u/s 138 of Negotiable Instruments Act. The allegations in it are

briefly as follows:-

The accused is having financial dealings with the complainant. For the amount borrowed from the complainant, the accused had issued 29 cheques

which are given in the complainant, in favour of the complainant for the respective sums and the dates. The aforesaid post-dated cheques were

issued with a period of six months, on the assurance that the accused will make arrangement to honour the same on or before the date of cheque.

The complainant presented the cheques for collection on 29.11.90 and 30.11.90. They were returned on the same day as unpaid due to

insufficiency of funds, with the bank memo with endorsement ""refer to drawer"". The complainant sent notice on 4.12.90 to the accused calling

upon him to pay the amount due under the dishonoured cheques within 15 days. Even though accused is permanently residing in the above

address, purposely he was evading to receive the notice on two occasions. Presumption can be drawn on valid service of notice to the accused.

He has not paid the amount and hence the complaint.

Mr. V. Sairam, the learned Counsel appearing for the Petitioner, would contend that as per the allegations made in the complaint, the cheques

were presented for collection on 29.11.90 and 30.11.90 and they were returned, unpaid, with bank memo with endorsement ""Refer to drawer

and that the complainant sent the registered notice dated 4.12.90, calling upon the accused to make payment due under the dishonoured cheques

within 15 days and that the accused evaded receipt of the notice on two occasions'' Mr. Sairam pointed out that in the list of documents given at

the foot of the complaint item 50 is copy of notice dated 4.12.90 and item 51 is the returned cover, dated 5.1.91 and item 52 is the returned cover

dated 5.1.91. He would point out that as per the original complaint, it was filed on 8.2.91 and it was beyond the period of 15 days from the date

of service of notice and one month thereafter from 5.12.90, which is date of first returned cover and hence the complaint is barred by time, Mr. M.

Karpaga Vinayagam, the learned Counsel appearing for the Respondent, would point out that from the original records, it can be seen that the

notice was sent on 6.12.90 and the first notice was returned on 16.12.90 and the second notice was returned on 6.1.91. From the original

records, I find that the dates given by Mr. M. Karpagavinayagam are the correct dates. I shall proceed to consider the case, on the basis of these

correct dates. Intimation by the bank regarding return of the cheques, unpaid dishonoured are dated 29.11.90, as seen from items 28 and 49 in the

list of documents. The original intimation of the date 29.11.90 are found in the original records. As per S. 138(b) of the Negotiable Instruments

Act (which I shall hereafter referred to as the Act), after receipt of intimation of the dishonour, the payee shall make a demand for payment of the

said amount of money by giving a notice in writing to drawer of the cheques within 15 days of the receipt of information by him from the bank. As

such, notice sent on 6.12.90 and which was returned on 16.12.90 would alone fall within 15 days from the date of information from the bank. The

accused can make payment within 15 days from the date of information from the bank. The accused can make payment within 15 days

constructive receipt of notice. If 16.12.90 is taken as the date of constructive receipt of notice of the accused, 15 days therefrom will take us to

31.12.90. One month therefrom would take us to 31.1.91. This complaint was filed on 8.2.91. Hence it is clearly barred by time. Inter alia, if the

second notice is taken as the statutory notice it is seen that it was sent only on 28.12.90. It was beyond 15 days from the date of receipt of

information from the bank about the dishonour of the cheque. So that notice will not satisfy the requirements of S. 138(b) of the Act. On the basis

of that notice, this complaint cannot be sustained.

Mr. M. Karpagavinayagam, would contend that because the first notice could not be served on the accused, the second notice was issued and

that he is entitled to issue such a second notice and take advantage of the same by virtue of Section 98(d) of the Act. Section 98(d) of the Act

reads as follows.

98 when notice dishonour is unnecessary. No notice of dishonour is necessary.

a...

b...

c...

d. When the party entitled to notice cannot after due search be found or the party bound to give notice is, for any other reason, unable without any

fault of his own to give it.-

I am unable to find anything in S. 98(d) to help the Respondent. The offences u/s 138 of the Act is committed only in the manner stated in the said

section coupled with the compliance of requirement enumerated in the proviso to S. 138 of the Act. Apparently the requirements of S. 138 of the

Act are not complied with in this case. The Complaint is filed after expiry of 45 days from the date of return of the first statutory notice. Hence it is

clearly barred by time. On that ground, the complaint is liable to be quashed.

Mr. M. Karpagavinayagam relying upon M. B. Harinarayanan v. Ninam Lulla. 1990 L.W. (Crl.) 143 would contend that whether the statutory

notice was issued within the time or not, can be decided only at the time of trial and not now. In view of the facts that emerge from the complaint

and from the documents filed with the complaint as from the original records it is clearly seen that only the first statutory notice sent on 6.12.90 and

which was returned on 16.12.90 is within a period of 15 days from the date of intimation by the bank of dishonour of the cheque and since the

complaint is filed after the expiry of 15 days thereof, it is clearly barred by time. So it is not as if the particulars and facts which throw out the

complaint due to bar of limitation, is yet to come only during the course of trial. On a perusal of the above ruling, 1 find that in that case, the cheque

was represented for a second time and it was returned unpaid, dishonoured on 2.8.91 and that memo was received by the complaint on 4.8.91

and he issued a notice on 14.8.91 which is within 15 days time. While so, in view of the above, this ruling will not help the Respondent.

In view of the above, the petition is allowed and the proceedings in C.C. No. 89/91 on the file of Judicial Magistrate No. I, Kancheepuram are

hereby quashed.