Rohit Khanna vs Punjab National Bank

Petitioner, by means of this petition, are seeking the quashing of complaint proceedings initiated by the Magistrate after taking congnizance of the

of fence under Section 138 of Negotiable Instruments Act and issued process against them in exercise of the powers of the court under Section

561ACr. P.C.

The main plank of the petitioners' contention is that, the complainant did not get the cheques cleared given in advance by the petitioners towards

the repayment of the loan advances for purchases of a car on the due date. The complainant deposited all the three cheques dated 1101999 No.

PRQ 637016 amounting to Rs. 4,2007 cheque dated 1111999 No. PRQ637017 amount to Rs. 4.200/ and cheque dated 1121999 No.

PQR637018 amounting to Rs. 4.200/ on one date. i.e. 2532000 for collection and realisation together contrary to the agreement between the

petitioners and respondent at the time of issuance of 20 cheques. Each cheque was for an amount of Rs. 4.200/ (Rupees four thousand and two

hundred only) payable to the respondent by first of every month from the account of the petitioners towards the adjustment of the loan, but the

complainant instead deposited all the three cheques together on 2532000 without informing the petitioners, which stood dishonoured, resulting into

the filing of the complaint under Section 420 RPC and Section 138 of the Negotiable Instruments Act.

The sole grievance of the petitioners raised in this petition is that, no notices, as required under law, were served upon the petitioners,

demanding the amount of cheques so dishonoured. That the courier service is no service in the eyes of law that too through agent or servant, who

is not authorised to receive any post on behalf of the petitioners. It was further pleaded that the notices sent through registered post were returned

with the endorsement that the addressee left for Delhi and, in such an event, it could not be said that notice of demand has been served upon the

petitioners, that the notice attached with the com plaint is not a legal notice and does not conform to the requirement of Section 138 of Negotiable

Instruments Act, be cause the amount demanded is from the date of notice instead of from the date of receipt of notice by the respondent, and,

thus, the compliant was not entertainable under Section 138 of the Negotiable Instruments. Act.

Mr. Ravinder Sharma, learned advocate appearing for the respondent, how ever, submitted that on the basis of the statement made in the

complaint, prima facie, there is sufficient material for the court to take cognizance and issue process against the petitioners.

Having considered the rival submissions and after examining the assertions made in the complaint, I have no hesitation to come to the conclusion

that even if there is no expression or explicit averments in the complaint, court would be justified in taking cognizance of the offence if the

ingredients or inferences from the complaint. In the matter of taking cognizance on receiving a complaint, under Section 190)1) (a) of the Code of

Criminal Procedure enjoins that Magistrate empowered under SubSection (2) of Section 190 of the Code of Criminal Procedure can take

cognizance upon the receiving a complaint of facts which constitute such offence. Section 142 of the Act enjoins the conditions for taking the

cognizance of the offence punishable under Section 138 of the Act. As regards the contention raised Mr. R.P. Sangra, petitioners' advocate, that

courier service is no service in the eyes of law, it is significant to point out that under Section 138 of the Act, no mode is prescribed for service of

the notice. It is sufficient that the notice is served on the accused. In the instant case, complaint stating that notices were sent as registered post as

well as through courier and the service is clearly evident from the POD received back by the complaint from the courier, whereas the notices sent

through registered post received back by the complainant from the postal authority with the remarks on both envelopes as ""addressee has left for

Delhi."" This is, however, a question of fact that whether notice was received by the accused or not. On this ground, the complaint cannot be

quashed. That apart, even telegraphic notice demanding payment is valid.

Another limb of argument put across by the petitioners' advocate is that, all the three cheques drawn were payable by first of every month to the

respondent from the account of the petitioners in the bank, but the respondent by presenting three cheques at one time on the last date of the

month frustrated the very purpose of issuance of monthwise cheques. It may be pointed out that a cheque can be presented any number of time

during the period of its validity by payee. On each presentation of the cheque and its dishonour a fresh right, and not cause of action accrues in his

favour. The complainant may, therefore, without taking preemptory action in exercise of such right under Clause (b) of Section 138 of the Act go

on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But once he gives a notice

under Clause (b) of Section 138, he forfeits such right for in case of failure of the drawer to pay money within stipulated time, he will be liable for

the offence and the cause of action for filing the compliant will arise. This contention of the petitioners also does not hold good to grant their prayer

for quashing the proceedings. Lastly, it is submitted by the petitioners' advocate, that the complainant did not specify the date on which the notice

has been received. There is a clear 15 days time provided for payment of the amount due under the cheque from the date of the receipt of the

notice regarding dishonour of the cheques issued by the petitioner/drawers. That it is after the expiry of the period of 15 days from the date of

receipt of notice, if the petitioners did not pay amount, the cause of action accrues for filing a complaint.

The conditions pertaining to the notice to be given to the drawer, have been formulated and incorporated in Clauses (b) and (c) of the proviso to

Section 138(1) of the Act. On the part of the payee he has to make a demand by ""giving a notice"" in writing. If that was the only requirement to

complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such ""giving"", the travails of the

prosecution would have been very much lessened. But the legislature intends that failure on the part of the drawer to pay amount within 15 days of

the ""receipt"" of the said notice. It is, therefore, clear that ""giving a notice"" in the context is not the same as receipt of notice. Giving is a process of

which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer in the correct address.

Section 138 of the Negotiable Instruments Act does not prescribe a mode for the service of a notice. Nonetheless, the principle incorporated in

section 27 of the General Clauses Act can profitably be imported in a case where the sender has dispatched the notice by post/courier with the

correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that he was not served and that he was

not responsible for nonservice. Any other interpretation can lead to a very tenuous position as the drawer of the cheque, who is liable to pay the

amount, would resort to the strategy of subterfuge by successfully avoiding notice. The decision of the Apex Court in K. Bhaskaran V. Sankaran

Vaidhyan Balan and another, AIR 1999 SC 3762, may be noticed.

In the instant case, due notice was issued for payment at correct address, but returned unserved with endorsement that the addressee has left for

Delhi and notice sent through courier indicated that the service has been effected through agent of the petitioners. The notices, in such

circumstances, are deemed to have been served. A complaint filed within limitation on the basis of such notices and Magistrate taking cognizance

of of fence punishable under Section 138 of the Act on the basis of such a complaint and issuance of process against the accused, is neither

erroneous nor illegal, so as to necessitate the exercising of power under Section 561A of the Code of Criminal Procedure.

In this view of the matter, I do not find any merit in this petition and is accordingly dismissed. The Magistrate is directed to take up the

proceedings and conclude the same as expeditiously as possible. Record be remitted back to the Magistrate forthwith where the parties through

their counsel are directed to cause appearance on 13th May, 2002.