T. Shyamala vs S.M.R. Finance

Pratap Singh, J.—The accused in C.C. No. 824 of 1993, on the file of the Judicial Magistrate, Tiruvarur, has filed this petition u/s 482 of the

Code of Criminal Procedure praying to call for the records and quash the same.

The respondent has filed a private complaint against the petitioner/for an 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 was liable to pay a large sum of money to the complainant

and towards that, the accused issued a cheque on October 14, 1993, for Rs. 50,000 and delivered it at Pulivalam. It was returned with an

intimation dated October 18, 1993, for the reason ""not arranged for"". The respondent issued a notice through his lawyer on October 25, 1993.

The accused sent a reply on November 1, 1993, containing false allegations. Hence, the complaint.

Learned counsel for the petitioner, Mr. T. S. N. Prabhakaran, would submit, firstly, that the complainant in his notice had not stated that he is

going to prefer a complaint for an offence u/s 138 of the Negotiable Instruments Act against the petitioner. Secondly, he would submit that the

accused had paid the entire amount due under the cheque.

I have carefully considered the submissions made by learned counsel for the petitioner. Regarding the first contention, I have to say that it is not

necessary for the complainant to intimate that he is going to take action for an offence u/s 138 of the Act. What is required is that the payee has to

call for payment for the said amount due within 15 days of the receipt of information by him and if the drawer of the cheque fails to make the

payment within 15 days of receipt of notice, the complaint can be lodged. There is no obligation that the complainant should particularly refer to

section 138 of the Act in the notice. In the instant case, the relevant portion of the notice reads as follows :

Please take notice that if you do not pay and settle the amount due under the cheque within fifteen days hereof, criminal legal action will be taken

and relief had at with costs.

I am clear that this portion satisfies the requirements of clause (c) of the proviso to section 138 of the Act.

Regarding the second submission, the allegation is that only a false reply was sent. While so, the claim that the amount due under the cheque was

paid, can be canvassed only during the trial when evidence is let in to substantiate the claim. That stage has not yet come. On that ground, the

complaint cannot be quashed at the threshold.

In the result, this petition fails and it is dismissed.