N. Velayutham vs Sri Ganesh Steel Syndicate

Pratap Singh J.

The accused in C. C. No. 6472 of 1991 on the file of the VIIth Metropolitan Magistrate, Madras, has filed this petition u/s 482 of the Criminal

Procedure Code, 1973, praying to call for the records in the above case and quash the same.

The short facts are: The respondent has filed the private complaint against the petitioner for an offence u/s 138 of the Negotiable Instruments

Act (which I shall hereafter refer to as ""the Act""). The allegations in it are briefly as follows:

On the request made by the accused, the complainant supplied goods of a total value of Rs. 1,88,093. The accused asked for three months''

time to pay a portion of the value of the goods and gave two post-dated cheques dated May 20, 1991, and June 20, 1991, for a sum of Rs.

48,755. When presented, those cheques were returned with the remark ""exceeds arrangement"". Thereafter, the accused was contacted by the

complainant and the accused pleaded time to honour the commitments and requested him to take two fresh cheques dated July 22, 1991. When

presented, those cheques were again dishonoured. The complainant issued a notice on September 25, 1991, and the same was acknowledged by

the accused. Still the amount was not paid. Hence, the complaint.

Mr. A. Ramesh, learned counsel appearing for the petitioner, would submit that:

(i) the cheques were not issued in discharge of a legally enforceable debt;

(ii) there is no allegation in the complaint as to for what reason the cheques were returned;

(iii) the date of receipt of the statutory notice by the accused is not given in the complaint;

and in view of the above, the requirements for offence u/s 138 of the Act were not complied with and the offence is not made out and hence the

complaint is liable to be quashed. I have heard Mr. M. Kumarasamy, learned counsel appearing for the respondent, on the above aspects.

I have carefully considered the submissions made by learned counsel. Regarding the submission that the complaint does not disclose that the

cheques were issued in discharge of a legally enforceable debt, I have to refer to the relevant allegations made in para 3 of the complaint. In it, it is

alleged that on the request made by the petitioner, the respondent supplied goods of a total value of Rs. 1,88,093 and the petitioner asked for

three months'' time to pay a portion of the value of the goods and issued two cheques dated May 20, 1991, and June 20, 1991, in part payment

thereof. Then, again, it is stated that those two cheques were returned dishonoured when presented for encashment and when the respondent

contacted the petitioner and apprised him of the fate of the two cheques, the accused again pleaded for time to honour the commitments and

requested him to take two fresh cheques and these two cheques were issued. A reading of the above allegations would go to show that these

cheques were issued for discharge of the amount payable for the supply of goods by the complainant to the accused. As such, the submission that

the allegations in the complaint do not disclose that the cheques were issued in discharge of a legally enforceable debt cannot be accepted.

Reading the submission that the complaint does not disclose the reason for dishonour of the cheques and only in a case where it is alleged that

the cheques were returned for the reason that funds were insufficient or exceeded arrangement, the offence is made out, I am clear that while

considering a case u/s 482 of the Criminal Procedure Code, not only the complaint, but also the documents referred to in the complaint also should

be looked into to find out whether the offence alleged is correct or not. In the instant case, the xerox copy of the memo returning the cheques is

filed in the trial court and from the original records, I find that the cheques were returned for the reason ""exceeds arrangement"". While so, this

submission also falls to the ground.

Now, coming to the last submission that the date of service of notice on the accused has not been mentioned in the complaint and so that is an

infirmity, which goes to the root of the matter. In this regard, he relied upon the list of documents given in the complaint. In it, item No. 8 is the

complainant''s advocate notice dated September 25, 1991, and item No. 9 is acknowledgment dated July 1, 1991, and that he would submit that

the notice sent on September 25, 1991, cannot be received on an earlier date, viz., July 1, 1991. Obviously, there is some mistake in this regard

and that can be clarified during the course of evidence, which will come only at the time of trial. Regarding the date of receipt of notice, there is no

mention in the complaint about it. But it is definitely stated that the notice was received by the accused, he had acknowledged it and still he has not

paid that amount. As such, the date of receipt of notice is not made clear in the complaint. There is obviously an omission. That will come to light

only during the course of trial. If this complaint was filed before the expiry of 15 days from the date of receipt of notice, then it has to be dismissed

and if it was filed after the expiry of fifteen days from the date of receipt of notice, then certainly it will be in order, if it was filed within 30 days of

the date of receipt of notice and if the cheque amount was not paid within 15 days of the date of receipt of notice. At this stage, when the date of

receipt of notice is not specifically stated in the complaint, no presumption can be made either this way or that way. There is a positive allegation

that the accused had received the notice and had acknowledged it. Only for the purpose of computing the period of time as to whether it is filed

within time or beyond time, the date is to be fixed. That can be done at the time of trial and so I am unable to quash it at the threshold. Mr. Ramesh

would reply upon Elangovan v. Narayana Iyengar [1991] 2 MWN (Cri.) 87, in which this court occasion to consider the requirements of service

of notice on the accused. In that case, the notice sent by the complainant to the accused was returned with a postal endorsement ""addressee not

available in station"". By no stretch of imagination can such an endorsement to taken as service of notice on the accused. Neither was there any

averment in the complaint, in that case, about the receipt of notice by the accused, giving him the requisite period of 15 days time. On the facts of

that case, it was held that it is not sufficient to satisfy the requirements of the proviso to section 138 of the Act. The facts of the case before me are

totally different and hence this ruling is not applicable to this case. Hence this submission made by Mr. Ramesh in this regard, cannot be accepted.

In the result, the petition fails and shall stand dismissed.