Ravinder Singh vs Karam Chand, Prop.Pawan Engg.Works

G.S. Chahal, J.

Ravinder Singh, by means of this petition under Section 482 Cr.P.C. seeks quashing of complaint Annexure P1 and summoning order dated February 2, 1990 passed by JMIC Amloh Annexure P2.

The respondent brought a complaint against the petitioner for offence under Section 138 of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act (for short the Act), 1988 and Section 420 IPC. According to the allegations made in the complaint, the accusedpetitioner had business dealing, with the complainant and a sum of Rs. 2,02,240/ was due at the closing of the year 198889. Two cheques, one dated May 20, 1989 for Rs. 20,000/ and another dated June 20, 1989 for Rs. 30,000/ were issued towards part payment of the amount due. These cheques were presented to the Bank which were dishonoured and received back with the remarks "Refer to Drawer" and the cheques were received back on August 19, 1989. On August 28, the complainant issued a notice to the accused petitioner for the payment of Rs. 50,000/. The service of notice was intentionally avoided and was received back by the complainant on September 14, 1989. On these basis, the complainant alleges commission of an offence under Section 420 IPC and under Section 138 of the Act. The complaint is dated October 16, 1989.

In the inquiry proceedings, the complainant made his own statement and examined Surjit Singh, a Clerk of Punjab National Bank, Mandi Gobindagarh and also tendered into evidence documents Exts. P.1 to P.10. The learned Magistrate found that offence under Section 138 of the Act had been made out and he ordered his summoning.

The accused petitioner claims that some civil litigation between the parties was pending at Gohana and the transactions referred to in the complaint are covered by that civil litigation. That in fact no amount of Rs. 2,02,240/ was due. The issuing of cheques were admitted, but it was claimed that they were postdated and instructions had been issued by the petitioner to the Bank to stop the payment. That since no goods had been supplied, the petitioner was not required to deposit the amount for honouring of the cheques. The summoning order is also challenged on the ground that the same was nonspeaking.

Section 138 of the Act creates notional offence after the cheque is dishonoured on account of money standing to the credit in the account of the drawer to be insufficient. But before a criminal offence is committed, the following conditions as laid down under Section 138 of the Act must be fulfilled :

"Section 138...........

Provided that nothing contained in this section shall apply unless

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) 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; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

Under Section 142 of the Act such a complaint has to be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. To make out an offence under the aforesaid Section, the cheque issued by the accused must have been dishonoured on account of the default of the drawer in arranging funds in his account to enable the bank to honour the cheque. The term "refer to Drawer" is a courteous way used by the bank officials to convey that there are no funds in the name of the drawer to honour the cheque. After the receipt of information about dishonouring of the cheque, i.e. drawee has to serve a notice upon the drawer to make the payment within a period of 15 days of the receipt of notice. This notice has also to be issued within a period of 15 days of the receipt of information about the dishonouring of the cheque. In case the drawer fails to make the payment within the stipulated period of 15 days, a cause of action arises in favour of the drawee to institute a criminal complaint against the drawer and for that he has one month period from the date of expiry of the period of notice. Under the Act, it is a notional offence which is committed and the offence is complete only when the drawer of the cheque fails to make the payment within the stipulated period of 15 days from the date of service of notice. The period of limitation, as such, will start to run with the expiry of the 15 days period from the delivery of the notice. The complainant has alleged in the complaint that notice was issued on August 28, 1989 i.e. to say within 15 days from the date of receipt of the intimation about dishonouring of the cheques. These notices were, however, received back unserved. It will be a matter of the evidence as to the date on which the notices were offered to the petitioner and not accepted by him. The 15 days time allowed to a drawer of a cheque, which is dishonoured, will commence from the date of service of notice and after the expiry of that 15 days the complainant has one month''s limitation to file the complaint. All these facts can only be established on the basis of evidence, which may bailed before the trial Court. The question of limitation thus has to be left open to be decided by the trial Court. The complaint carries ingredients of an offence under Section 138 of the Act and before the trial Court, evidence had been led to satisfy the court that there was a prima facie case to put the accused petitioner on a regular trial. There is no force in the contention that the order of the learned Magistrate is not a speaking order.

I hereby dismiss the petition. The parties are directed through their counsel to appear before the trial Court on September 21, 1992.