Paramjeet Kour vs J and K State Financial Corporation

Y.P. Nargotra, J.—The respondent/complainant J&K State Financial Corporation has filed a complaint for commission of offence u/s 138

of the Negotiable Instruments Act against the petitioner/accused before the Court of learned City Judge, Judicial Magistrate 1st Class, Jammu on

the allegations that the petitioner/accused had set up an Industrial Unit at Kaluchak, Jammu after having been financed by the

complainant/Corporation. The accused / petitioner was to re-pay the installments due to the complainant corporation and in regard thereto issued a

cheque No. 675977 dated 7-12-2002 for an amount of Rs. 80,000/- in favour of the complainant/State Financial Corporation. The complainant

deposited the said cheque drawn on the Citizens Cooperative Bank Ltd, Gangyal, Jammu on 9-12-2002 through its Banker, the Jammu &

Kashmir Bank Ltd. The cheque was dishonoured and returned with a memo to the complainant/Corporation. The complainant issued a notice

dated 22-12-2002 by registered post for demanding the payment of the cheque within a period of 15 days from the date of receipt of notice, but

the accused did not take any steps to liquidate the amount of Rs. 80,000/- within the stipulated period of 15 days. So he has committed the

offence u/s 138 of the Negotiable Instruments Act. After the complaint being filed, the learned trial Court vide its order dated 7-2-2003 took the

cognizance against the accused/petitioner and issued the process. The accused/petitioner appeared and filed an application for dropping the

proceedings. The learned Magistrate vide its order dated 8-5-2004 dismissed the application. The accused/petitioner filed a criminal revision

petition in the court of learned 1st Addl Sessions Judge, Jammu which also met the same fate. Hence the accused/petitioner has filed the present

petition for invoking Section 561-A Cr.P.C for seeking quashment of the complaint and the order dated 7-2-2003 passed by the Magistrate for

taking cognizance against him.

I have heard the learned Counsel for the parties and perused the record.

The first contention of the learned Counsel for the petitioner Mr. Mishra is that the complaint is not maintainable as in the complaint it has not

been stated as to when the notice issued was served upon the accused/petitioner and on which date the period of 15 days expired so as to give the

complainant/respondent a cause of action against the accused.

Indisputably to constitute the offence u/s 138 of the Negotiable Instruments Act it is necessary for the complainant to prove that the accused has

issued the cheque which has been dis-honoured and after the dis-honoring of the cheque a notice under Clause (b) Proviso to Section has been

issued 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. As per the allegations of the complainant the cheque was returned as un-paid on 11-12-2002 so he issued the notice dated 12-

12-2002 under registered post A/D for demanding the payment of an amount of Rs. 80,000/- which is the amount of the cheque. The requirement

of Clause (b) thus prima facie stand satisfied in the instant case. In terms of Clause (c) of Proviso to Section 138 the cause of action for filing the

complaint for commission of the offence u/s 138 against the accused would have been accrued after the expiry of 15 days from the receipt of the

said notice. The date on which the notice issued under registered cover was received by the accused/petitioner has not been mentioned in the

complaint, so the question is whether the non-mention of that date in the complaint is fatal to the maintainability of the complaint and for that matter

whether that question can be gone into by this Court while exercising jurisdiction u/s 561-A Cr.P.C.

In my considered opinion non-mention of the date of receipt of the notice in the complaint is not material. In the complaint the complainant is

required only to show that he had issued the notice in writing as contemplated by Clause (b) of the Proviso to Section 138. The service of the

notice can be proved during the trial of the case being a question of fact. Once a notice by registered post is issued a presumption of service can

be raised u/s 27 of the General Clauses Act which deals with the presumption of a letter sent by post.

While considering the question of the service of notice in terms of Section 138 of the Negotiable Instruments Act in Dalmia Cement (Bharat) Ltd

v. Galaxy Traders and Agencies Ltd and Ors. 2001 (1) SCC 311 the Apex Court observed:

Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The dispatcher of a notice has, therefore, a

right to insist upon and claim the benefit of such a presumption. But as the presumption is rebut able one, he has two options before him. One is to

concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendees stand and take the

risk for proving that he in fact received the notice. It is open to the dispatcher to adopt either of the options.

So during the trial of the case towards the proof of the offence, the complainant is required to prove the service of the notice upon the

accused/petitioner and to show that he filed the complaint after 15 days of receipt of notice. Since the presumption is available to the complainant

at the stage of filing of the complaint, the accused/petitioner cannot successfully urge that the complaint is invalid because he had not shown the

date on which the notice was served upon him. The said question cannot be determined by this Court in exercise of the jurisdiction vested u/s 561-

A Cr.P.C.

Learned Counsel for the petitioner next contends that in the notice no specific demand for the cheque amount was made, therefore, the notice in

question does not satisfy the requirement of Clause (b) of Proviso to Section 138. There is no merit in the contention. The copy of the notice which

was allegedly sent by the complainant to the accused has been placed on record. The operative portion thereof reads:

You are, therefore, advised in your own interest to deposit the said amount in lieu of dishonoured cheque within 15 (fifteen days) failing which we

shall proceed against you under the said Act.

From the bare reading of the above, it is manifest that what was being demanded by the dispatcher of the notice from the sendee was the

amount in lieu of the dis-honoured cheque. As the cheque amount was Rs 80,000/- so it would mean that the demand was for the payment of Rs

80,000/-.

The last and third contention raised by the learned Counsel for the petitioner is that the learned trial Court was not justified in issuing the

process against the accused after taking cognizance. He argues that in terms of Section 200 Cr.P.C it was incumbent upon the Magistrate for

taking cognizance of an offence on a complaint to have examined the complainant and the witnesses present upon oath and to reduce the substance

of such examination in writing and it is only on the basis of such evidence and the averments made in the complaint, the Magistrate could have

formulated an opinion in terms of Section 204 Cr.P.C on the question whether there was sufficient ground for proceeding or not. He submits that in

the instant case the statement has been recorded without oath which could not have been legally relied upon by the trial Court for taking

cognizance and issuing the process against the accused.

In support of his contention he relies upon the case Sanjeev Kumar Mengi Vs. Birds and Birds Hotel Pvt. Ltd., in which this Court held:

The omission of the learned Magistrate to record the statements of the complainant and his witnesses upon oath renders the evidence recorded by

the learned Magistrate inadmissible in evidence. Section 200 of the Code of Criminal Procedure, 1989, contemplates that statements of

complainant and his witness are mandatorily required to be recorded upon oath and not otherwise. It is on the basis of these statements that further

proceedings may be initiated by the Magistrate to consider the case of the complainant for its further process in terms of Section 204 of the Code

of Criminal procedure.

Section 200 of the Code of Criminal Procedure provides as follows:

Examination of complainant--A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the

witnesses present, if any upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the

witnesses and also by the Magistrate:

Provided as follows:

(a) When the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before

transferring the case u/s 192;

(b) When the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in

which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties;

(c) When the case has been transferred u/s 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to

whom it is so transferred shall not be bound to re-examine the complainant.

The word oath used in the section has not been defined any where in the Criminal Procedure Code. The word oath therefore, has to be

understood in its plain and ordinary meaning. The word oath has been defined by the New Shorter Oxford English Dictionary in its 1993 Edition as

follows:

Oath- A solemn declaration (often invoking God, a deity, etc) as to the truth of something, or as an absolute, commitment to future action,

behaviour, etc; an act making such a declaration.

Thus a solemn declaration with or without invoking God, a deity etc can be the definition of the word ""Oath"". The word Solemn in the said

Dictionary has been defined as Associated or connected with religious rites or observances; performed with due ceremony and reverence; having a

religious character; sacred.

Thus a declaration made with due ceremony and reverence having a religious or sacred character falls within the definition of the word oath.

In the present case the statement of the complainant has been recorded on solemn affirmation. Therefore, it stands the test of Section 200 of

the Code of Criminal Procedure and no illegality can be attributed for any justifiable reason to the preliminary statement of the complainant

recorded on solemn affirmation.

For what has been stated above, the petition of the petitioner is found to be without any merit. Same is as such, dismissed.