Naveen Hosiery vs Sewa Singh, Capt.

Harmohinder Kaur Sandhu, J.

On 26.5.1992 Capt. Sewa Singh respondent filed complaint in the Court of Chief Judicial Magistrate, Chandigarh, against the petitioners for an offence under Section 138 read with Section 142 of the Negotiable Instruments Act, on the allegations that the present petitioners approached him for financial assistance for the purchase of machinery and took a friendly loan of Rs. 1,40,000/ from him. In order to return the amount they issued four cheques i.e. two cheques for Rs. 27,000/ each were issued on 11.10.1991 which were payable at Central Bank of India, Mani Majra, 3rd cheque for Rs. 45,000/ was issued on 20.10.1991 payable at Punjab and Sind Bank at Mani Majra and 4th cheque was dated 14.12.1991 and was for a sum of Rs. 5,000/. All these cheques were presented for encashment with his bankers i.e. Punjab and Sind Bank, Mani Majra, for collection of money but the same were returned unpaid with the reports that there were not sufficient funds and ''refer to drawer''. Thereafter a legal notice dated 25.4.1992 was served under registered cover upon the petitioners which was received by them. No payment was ever made. The petitioners have filed this petition under Section 482 Cr.P.C. for quashing the above referred complaint Annexure P/1 and summoning order dated 1.8.1992 Annexure P/2 and all further proceedings thereunder pending in the Court of Judicial Magistrate 1st Class, Chandigarh.

The petitioners made averments in the petition that there was a dispute between them and the respondent regarding some amount which was obtained by them under a scheme floated by the complainantrespondent and the same was refunded in daily instalments of Rs. 300/. Again a sum of Rs. 45,000/ was obtained by the petitioner firm and it was refunded vide four cheques out of which last cheque of Rs. 5,000/ could not be encashed. When it came to their notice, the amount was paid in cash in two instalments. The complaint and further proceedings were liable to be quashed as the cheques were presented after six months and no notice was served within 15 days from the date of dishonour of cheques. The summoning order was passed without applying mind and it was cryptic and nonspeaking.

In the return filed by the respondent this fact was denied that the petitioners paid any amount and it was maintained that the cheques were presented in the bank within stipulated period on 8.4.1991. The notice sent to the respondents was proper as it was sent within 15 days of the receipt of information from the bank regarding the return of the cheques as unpaid.

I have heard the counsel for the parties.

It was urged on behalf of the petitioner that the cheques in question were not presented to the bank within the stipulated period and after the same were returned as unpaid, no notice was given within the prescribed period of 15 days.

Under Section 138 of the Negotiable Instruments Act, a person is liable for the offence if the cheque is presented to the bank within the period of six months from the date on which it is drawn or within the period of its validity whichever is earlier, the payee or 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and the drawer of such cheque fails to make the payment of the amount within 15 days of the receipt of the notice. As per allegations made in the complaint the cheques were presented within the period of validity. The cheques were returned unpaid as there were no sufficient funds to honour the cheques.

Notice dated 25.4.1992 was sent to the petitioners and no payment was made even thereafter. Prima facie all the ingredients of the offence were disclosed from the averments made in the complaint.

It was contended on behalf of the petitioner that although notice Annexure P/3 was dated 25.4.1992 but it was sent on 1.5.1992 whereas according to the allegations made in para No. 3 of the complaint the petitioners bankers returned the cheques vide memo dated 10.4.1992 with a report regarding insufficiency of funds. The learned counsel for the respondent, on the other hand, contended that although the cheques were returned on 10.4.1992, the respondent received information regarding the return of the cheques as unpaid from his banker on 17.4.1992 and even if the notice was sent on 1.5.1992 that was within the prescribed period. The notice was required to be sent to the drawer of the cheque within 15 days of the receipt of information by him from the bank regarding the return of the cheques.

I find that the questions whether the respondent received information regarding the return of the cheques as unpaid on 10.4.1992 or on 17.4.92 and when the notice was actually sent to the petitioners, are to be determined after the parties led evidence. At present the allegations in the complaint prima facie constitute the offence for which the petitioners were summoned to stand trial and no case for the exercise of inherent jurisdiction of this Court to quash the complaint and summoning order is made out. The petition is bereft of any merit and the same is hereby dismissed.