Ganesh Das vs Narendra Kumar and Others

G.L. Gupta, J.—Through this petition u/s 482, Cr. P.C. the petitioner seeks the quashment of the proceedings u/s 138, Negotiable Instruments Act, 1881 pending in the Court of Judicial Magistrate, Sumerpur.

Mr. Joshi pointing out that the complainant-respondent had not made a demand for payment of the amount of the dishonored cheque by giving notice in writing within 15 days of the receipt of the information from the Bank, contends that cognizance could not be taken by the Magistrate u/s 138 Negotiable Instruments Act.

The learned Public Prosecutor though admits that notice of demand was not given within 15 days, yet contends that the Magistrate has condoned the delay, and therefore, the proceedings should not be quashed.

I have considered the above arguments. Section 138 of the Negotiable Instruments Act reads as follows :-

Dishonor 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 honor 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 provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both :

Provided that nothing contained in this section apply-

(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 fifteen 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.

A reading of proviso (b) makes it clear prosecution for the dishonor of the cheque cannot be launched unless the holder in due course of the cheque 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 fifteen days of the receipt of information regarding the return of the cheque as unpaid.

In the instant case it is not disputed that the cheque drawn by the petitioner in favour of the complainant-respondent was presented within six months from the date on which it was drawn but, admittedly, a notice making demand for amount of the cheque was not sent by the complainant-respondent to the petitioner within 15 days of the receipt of the information from the Bank of the dishonor of the cheque. The object of the provision appeals to be that if for some reasons the cheque is returned, yet an opportunity should be given to the drawer of the cheque to make payment and if he makes payment it will prove his bona fides. With this object provision has been made that even after receipt of the notice, if the drawer does not make payment within 15 days then it will amount to an offence under the Act. As the complainant-respondent failed to serve a notice in writing on the petitioner, who is drawer of the cheque, within 15 days of the dishonor and the petitioner was not afforded an opportunity to make payment of the cheque, it has to be accepted that the petitioner cannot be convicted u/S., 138 of the Act. As such the continuance of the proceedings against the petitioner is not likely to yield result in favour of the prosecution. Obviously, the trial will amount to abuse of the process of the Court.

A perusal of the record of the trial Court shows that an application was made by the complainant-respondent that delay in serving the notice to the petitioner should be condoned. There is no specific order of the Magistrate on this application. In the order dt./- 22-7-94 the learned Magistrate observes that he condoned the delay in filing of the complaint. It was not a case where the complaint was filed with delay. The contention was that no notice was served as required in Section 138 of the Negotiable Instruments Act to the petitioner making a demand for the amount of the cheque. Admittedly no notice was given to the petitioner. The serving of the notice in 15 days being mandatory could not be waived by the learned Magistrate. The case Janardhan Mohapatra Vs. Saroj Kumar Choudhury, cited by the learned Judicial Magistrate in the order is not available in the report.

Consequently, the petition succeeds. The proceedings pending against the petitioner in the Court of Judicial Magistrate, Sumerpur in Case No. 387/94 are hereby quashed.