R. Shankar vs City Bank

Pratap Singh J.

The accused in C.C. No. 6477 of 1993 on the file of the XIVth Metropolitan Magistrate, Egmore, 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 complaint against the petitioner for the offence u/s 138 of the Negotiable Instruments Act,

1881 (which I shall hereafter refer to as ""the Act""). The allegations in it are briefly as follows :

The accused is a card member of the complainant-bank and using that card, the accused purchased goods on credit. When the bills were raised by

the complainant, the accused issued a cheque drawn in favour of the complainant for a sum of Rs. 7,500. The cheque was presented by the

complainant. It was returned unpaid by the bank on May 11, 1993, for the reason ""insufficient funds"". The complainant immediately issued notice

to the accused on May 12, 1993. The accused had received notice but had not paid any amount to the complainant till date. The accused has

committed offence punishable u/s 138 of the Act. Hence, the complaint.

Mr. T. K. Sampath, learned counsel appearing for the petitioner, would submit that in this complaint, the date of receipt of the notice by the

accused was not mentioned and the cause of action arises only if the amount was not paid before the expiry of 15 days from the date of notice and

because of this omission to mention the date of receipt of notice, the complaint is liable to be quashed.

I have carefully considered the submissions made by learned counsel. In the complaint, it is stated that the complainant issued the notice on May

12, 1993. It is also stated that the accused had received the notice. It is further stated that the accused had not paid the amount to the complainant

till date. This complaint was filed in the court on June 20, 1993. But there is an omission in the complaint, viz., that the date of receipt of notice by

the accused is not mentioned in it. The question that falls for consideration is whether because of that omission, the complaint is liable to be

quashed. I am clearly of the view that simply because the date of receipt of the notice by the accused is not noted in the complaint, it would not

necessarily mean that the complaint was filed before the expiry of 15 days from the date of receipt of the complaint, then the complaint is certainly

valid. If the complaint was filed before the expiry of 15 days from the date of receipt of the notice, then it would be invalid. So, only during trial,

when evidence was let in, it can be decided this way or that way. Of course, the complaint is to be filed within a month, after expiry of 15 days

from the date of receipt of notice and if the amount was not paid within the said 15 days. So unless the evidence is taken, one cannot be definite as

to whether the complaint was filed within a period of 15 days from the date of receipt of the notice or otherwise. As such, because of the omission

to mention the date of receipt of notice by the accused, the complaint cannot be quashed at the threshold.

Mr. T. K. Sampath, relied upon Elangovan v. Narayana Iyengar [1991] 2 MWN (Crl.) 87. In that case, the relevant facts are : The complainant

issued notice to the accused requiring him to pay the amount within 15 days from the date of receipt of notice. The said notice was returned,

without service on the accused with the postal endorsement ""addressee not available in station"". Thereafter, without issuing any fresh notice, the

complainant filed the complaint on November 8, 1989, u/s 138 of the Act. On these facts, it was pointed but that there were no specific averment

in the complaint about the receipt of the notice by the petitioner, giving him the requisite period of 15 days for complying with the demand so made

and the complaint was quashed. The facts of the case before me are totally different. In this case, the positive allegation is that the notice was

received by the accused. So this ruling would not apply to the case before me.

Mr. T. K. Sampath, relied upon Voltas v. Hiralal Agarwal [1992] MWN (Crl.) 17, Ghanshyam M. Swamy v. Classic Steel Products [1992]

(Suppl.) MWN (Crl.) 26, Bhatnagar v. Agarwal Investment Co. [1992] (Suppl.) MWN (Crl.) 38 and Rajiv Kumar v. State of U.P. [1992]

(Suppl.) MWN (Crl.) All 47 support of his submission that cause of action would arise only after the expiry of 15 days from the date of receipt of

notice. There cannot be any two opinions with regard to this proposition. But the question to be considered is whether mere omission to mention in

the complaint the date of receipt of notice by the accused would be a fatal one so as to quash the entire proceedings. My clear answer is in the

negative. In such a case, it pertains to the region of trial. In case the complaint was filed before the expiry of 15 days from the date of receipt of

notice by the accused, it will have to fail and if it is otherwise, it would survive.

Taking the above view of the matter, I am clear that the submission made by learned counsel cannot be accepted and this petition shall stand

dismissed.