B.V. Naveen Krishna vs The State of A.P. and P. Surayanarayana

B. Seshasayana Reddy, J.—This criminal petition has been filed by the accused in C.C.No. 232 of 2004 on the file of the Judicial Magistrate of First Class, Special Mobile Court, Mahabubnagar to quash the proceeding therein.

The second respondent is the complainant and the petitioner is the accused in C.C.No. 232 of 2004. The second respondent-complainant presented a complaint before the Judicial Magistrate of First Class, Mahabubnagar, against the petitioner-accused alleging inter alia that the petitioner-accused issued a cheque bearing No. 224615, dated 17.06.2002, drawn on Union Bank of India, Railway Station Road, Secunderabad, for Rs.3,00,000/- towards discharge of legally enforceable obligation under a service agreement. It is further alleged that the cheque, on presentation, came to be dishonoured on the ground of ''insufficient funds'' . The second respondent-complainant received the intimation of dishonour of the cheque on 12.12.2002. Thereupon, he issued a statutory notice to the accused on 08.01.2003 as contemplated u/s 138(b) of the Negotiable Instruments Act, 1881 (for short, ''the Act'') calling upon him to make good the amount covered under the cheque in question. Registered notice sent to the petitioner-accused returned with an endorsement ''unclaimed''. Hence, the second respondent-complainant filed the complaint against the petitioner-accused for the offence u/s 138 of the Act before the Judicial Magistrate of First Class, Mahabubnagar. The learned Magistrate took the complaint on file as C.C. No. 232 of 2004 after allowing the application filed u/s 142 of the Act to condone the delay of one day and issued process. Hence, this criminal petition by the petitioner-accused in C.C. No. 232 of 2004 to quash the proceeding therein.

Heard learned Counsel appearing for the petitioner and learned Counsel appearing for the second respondent.

Learned Counsel appearing for the petitioner-accused submits that the second respondent-complainant received the cheque return memo from the bank on 12.12.2002 and issued statutory notice dated 08.01.2003 calling upon the petitioner-accused to make good the amount covered under the cheque and since the notice is beyond the period stipulated u/s 138(b) of the Act, it cannot be construed as valid notice and eventually the proceeding initiated against the petitioner-accused based on the said notice is liable to be quashed.

Learned Counsel appearing for the second respondent-complainant submits that the trial Court took the complaint on file after condoning the delay of one day on an application moved by the second respondent-complainant and thus, the proceeding initiated against the petitioner-accused cannot be quashed at this stage in exercise of powers u/s 482 Cr.P.C.

Few dates are relevant to be noted. 17.06.2002 is the date of cheque. The second respondent presented the cheque for collection on 10.12.2002. The second respondent-complainant received the intimation of dishonour from the Bank on 12.12.2002. Thereafter, the second respondent issued the notice u/s 138(b) of the Act on 08.01.2003. For better appreciation, I may refer para.5 of the complaint and it is thus:

The cheque issued by the accused on 17.06.2002 and the said cheque was presented by the complainant on 12.12.2002 when complainant received information with regard to dishonour of cheque for want of insufficient funds. The statutory notice U/S.138 is issued on 8.1.2003 and on 13.1.2003 when intimation served on the accused with regard to the notice by the Postal authority and on 21.1.2003 the said unclaimed postal cover reached to the counsel of the complainant. In view of the above this complaint is filed within time.

The cheque came to be presented for collection on 10.12.2002 and the said cheque came to be returned for want of sufficient funds. The second respondent- complainant received the cheque return memo from the Bank on 12.12.2002. u/s 138(b) of the Act, a notice is required to be given to the drawer of the cheque within 15 days of receipt of the information by the payee or the holder in due course of the cheque. Of course there is an amendment with regard to the period stipulated u/s 138(b) of the Act. This amendment came into force from 06.02.2003. Therefore, the amendment is of no help to the second respondent-complainant. Admittedly, the statutory notice came to be issued to the petitioner-accused on 08.01.2003. It can be said without any controversy that the statutory notice is beyond the period stipulated u/s 138(b) of the Act. Therefore, the notice cannot be termed as a valid notice. In which case, the proceeding initiated against the petitioner-accused based on the said notice can not be construed as in accordance with the provisions of Section 138 of the Act.

In the result, the criminal petition is allowed and the proceeding in C.C.No. 232 of 2004 on the file of the Judicial Magistrate of First Class, Special Mobile Court, Mahaboobnagar, against the petitioner-accused is hereby quashed.