Munshi Jatav vs Gopal Chandra Jain

D.K. Paliwal, J.—This petition has been filed u/s 482 of Cr.P.C. for quashing of Criminal Case No. 5184/2009, registered by the learned JMFC, Gwalior against the petitioner u/s 138 of Negotiable Instruments Act, 1881. The brief facts of the petition are that respondent/complainant has filed the private complaint u/s 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as Act), before the learned JMFC, Gwalior, alleging that the respondent/complainant and petitioner have good relation and it was agreed between them that the petitioner will collect the material after demolishing the house of the complainant and will pay Rs. 35,000/- to the complainant. The petitioner took the material and payment was made through cheque bearing No. 540766 of Rs. 15,000/- dated 24.01.2009 and another cheque bearing No. 540767 of Rs. 10,000/- to the complainant. The cheque was presented by the respondent/complainant to his Bank, at Gwalior. On presentation the cheques were dishonoured with an endorsement that there is insufficient fund, thus the cheques were returned on 01.06.2009 to the petitioner. The respondent/complainant has given a notice through his counsel on 09.06.2009 regarding the payment of cheques'' amount which has to be paid by the petitioner, however, the petitioner has not given the cheque''s amount, therefore, it is prayed that the petitioner be punished u/s 138 of the Act. On the basis of the complaint cognizance has been taken and petitioner was called. Petitioner has preferred an application before the JMFC, Gwalior for dismissing the complaint. Learned trial Court vide order dated 19.05.2010 has dismissed the application; hence this petition has been preferred.

It is submitted by the learned counsel for the petitioner that as per the complaint the cheques have been presented in his Bank, which have been dishonoured and the complainant/respondent has intimated on 01.06.2009. The notice was sent to the petitioner, which was served with a note that intimation has been given to the petitioner on 11.06.2009 and the same was returned to the respondent/complainant on 18.06.2009. The complaint has been filed on 23.06.2009 in the Court of JMFC, Gwalior, which is premature. It is further submitted that the private complaint is not maintainable, hence it is prayed that the complaint be quashed.

In order to appreciate the rival submissions of the learned counsel for the parties, I have perused the record.

From the perusal of Annexure P/1, it appears that the respondent/complainant has filed this complaint alleging that the cheque bearing No. 540766 of Rs. 15,000/- dated 24.01.2009 and cheque bearing No. 540767 of Rs. 10,000/- was given to him, which have been returned without payment with a note that insufficient fund on 01.06.2009. The respondent/complainant sent a registered notice through his counsel on 09.06.2009 to the petitioner but neither the payment was made nor reply of the notice was given, therefore, complaint has been filed on 23.06.2009.

Learned counsel for the petitioner submits that the complaint u/s 138 of Act, can only be filed after expiry of 15 days of the service of the notice. Reliance has been placed in the decision rendered in the matter of Sarav Investment and Financial Consultants Pvt. Ltd. and Another Vs. Llyods Register of Shipping Indian Office Staff Provident Fund and Another, in which it has been held that the complaint can be filed by drawee only after 15 days of service of the notice.

Section 138 of Negotiable Instruments Act reads as under:-

Dishonour of cheque for insufficiency, etc., or 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.

The plain reading of the aforesaid proviso (c) make it clear that the holder of the cheque must be given an opportunity to pay the amount in question within 15 days of the receipt of the said notice and if the amount is not paid within 15 days the complaint can be filed for commission of offence by a drawee of the cheque only after 15 days of service of notice.

In the instant case, undisputedly, the notice was given on 09.06.2009, it was not specified that when the said notice was received by the petitioner, but taking note of the fact that it was sent through registered post, it can be assumed that it has been received by the petitioner on 10.06.2009 or thereafter. But, the respondent/complainant has filed the complaint on 23.06.2009 which is within the 15 days of the notice given by the complainant.

Learned counsel for the respondent by placing reliance in the decision rendered in the case of Chouradiya Trading Company Vs. Sushil Kumar, submits that complaint cannot be dismissed because it was prematurely filed. In Chouradiya Trading (supra) notice was sent on 26.03.2002, which was received on 27.03.2002, though the complaint has been filed before the Court on 03.04.2002, however cognizance was taken by the Court u/s 138 of Negotiable Instruments Act on 28.09.2002. Therefore it was held that complaint is maintainable. The facts of the instant case are entirely different with the case cited by the learned counsel for the respondent.

The learned counsel for the respondent has also relied on the judgment rendered in Sou. Shilpa A. Suratwala through Power of Attorney Holder Shri Anil Chandrakant Suratwala Vs. Monika Developers Pvt. Ltd. and Another, , wherein it has been held that notice of demand of a period shorter than 15 days for making payment was not bad and illegal. The law does not require the payee of the cheque to specify the period within which the drawer of the cheque should make payment in the notice of demand. Payee of a cheque is free to make a demand of payment within any time he choose.

Learned counsel for the respondent has also relied on the judgment rendered in the case of Arvind Bhai Selarka Vs. Dilip Gogad and Another, wherein it has been held that the provision of Section 138 of Act invites a liberal interpretation for the person, who has the statutory obligation to give notice. The Court should not adopt such an interpretation, which helps a dishonest evader and clips an honest payee. The facts of this case are also different from the instant case. In Arvind (supra) it was disputed by the applicant that the notice was not served upon him and prays for discharged. In the instant case, this question is not involved.

Taking into consideration that the proviso (c) of Section 138 of the Act which makes it clear that the drawer of such cheque may make the payment within 15 days of the service of notice of demand whereas the fact of the instant case as noticed above show that notice has been sent through registered post on 09.06.2009 and complaint has been filed on 23.06.2009 i.e. before the expiry of 15 days from the date of receipt of notice and the cognizance has been taken on 23.06.2009 the complaint must be held to be premature and the cognizance taken by the learned Magistrate is therefore illegal.

In view of the above, I am of the conclusion that the learned trial Court has committed illegality in taking cognizance on premature complaint, hence the proceedings of Criminal Case No. 5184/2009 deserve to be quashed and petition deserves to be allowed. Consequently, petition is allowed and the proceedings of Criminal Case No. 5184/2009 are hereby quashed.