P. Ramakrishnan and another vs Bagnar Finance Co.

Pratap Singh, J.—The accused in CC. No. 2659 of 1991, on the file of the VIIIth Metropolitan Magistrate, George Town, Madras, have

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 petitioners 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:

Accused Nos. 1 and 2 entered an agreement with the complainant on June 28, 1989, and obtained a loan of Rs. 4 lakhs. On December 27, 1989,

they obtained another loan of Rs. 4 lakhs from the complainant. Apart from the above, on March 5, 1990, the first accused obtained a loan of Rs.

25,000 from the complainant. On March 21, 1990, he received a loan of Rs. 15,000 from the complainant. On September 30, 1990, the first

accused issued two cheques in favour of the complainant to discharge the above liability in part for Rs. 4 lakhs and for Rs. 3 lakhs. When the

complainant deposited the cheques on September 30, 1990, for collection, they were returned with a memorandum stating ""not arranged for."" The

complainant informed the same to the first accused by telephone and the first accused asked the complainant to represent the two cheques on

January 18, 1991, and accordingly the complainant re-presented the cheques. But the said cheques were dishonoured and returned again with the

endorsement ""not arranged for"". The said memo was received by the complainant on January 19, 1991. After issuing notice, since the accused

have not paid the amount, this complaint has been laid.

Mr. A. Chidambaram, learned counsel appearing for the petitioners, would submit that the first petitioner alone was the drawer of the cheques

and so the compliant as against the second petitioner for an offence u/s 138 is liable to be quashed. He would further submit that the statutory

notice was sent after the expiry of 15 days from the date of receipt of intimation from the bank about the dishonour of the cheque for the reason

exceeds arrangement"" and so there is no compliance with clause (b) of the proviso to section 138 and the compliant is liable to be quashed as

against both the accused.

I have carefully considered the submissions made by learned counsel. Regarding the second petitioner, since he was not the drawer of the

cheque, the complaint as against him is liable to be quashed.

To consider submission No. 2, clause (b) of the proviso to section 138 needs extraction. It reads as follows:

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.

In the instant case, the intimation of dishonour was received by the complainant on January 19, 1991. The statutory notice was sent by the

complaint on February 4, 1991. Even after excluding the date of receipt of intimation, viz., January 19, 1991, this period is computed only on the

expiry of fifteen days and on the sixteenth day, the complainant had sent the statutory notice. Thus clause (b) of the proviso to section 138 is not

complied with in this case. On this ground, the compliant is liable to be quashed as against the first petitioner.

In the result, the petition is allowed and all further proceedings against the petitioners/accused Nos. 1 and 2 in CC No. 2659 of 1991, on the file

of the VIIIth Metropolitan Magistrate, George Town, Madras, shall stand quashed.