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2002 Supreme(AP) 193
Andhra Pradesh High Court
YALAMANCHILI NAGARAJA RAO - Appellant
Versus
NALGONDA DISTRICT CO-OPERATIVE CENTRAL BANK, MIRYALGUDA BRANCH - Respondent
Decided On : 02-11-02
Headnote:
- Negotiable Instruments ACT, 1872 – Section 142 - Section 138 – Appeal – Dishonour of Cheque – Not serving of notice of dishonour – Quash of proceedings - CRIMINAL Petition is filed by the accused on the file of Court of judicial Magistrate of First Class, to quash said proceedings initiated against him under of Negotiable Instruments Act, on ground that notice of dishonour was court not served on him - CRIMINAL Petition is filed by accused on the file of Court of Metropolitan Magistrate, to quash said proceedings initiated against him under of the Act on ground that notice of dishonour was not served on him – Held , Proceedings initiated by his creditors, who diligently pursue remedies open to them, and cannot, on that ground, seek dismissal of the complaint even at the threshold - Question as to whether accused was really out of station during relevant period, when notice by registered post was sent to his address and if he really went out, why he failed to make arrangements to receive letters, etc. , sent to him, or if he, being available, got a false endorsement of his absence made, are matters to be decided after parties adduce evidence - In circumstances, prima facie, presumption of petitioner in crl. receiving notice addressed to him can be drawn, even if he was really absent for about a week, because of his failure to make proper arrangements for receipt of registered etc letters or notices addressed to him - He can rebut presumption by adducing evidence to satisfaction of Court - In view thereof, proceedings in cannot be quashed on ground that no cause of action accrued to complainant to initiate proceedings ,due to non-receipt of notice of demand after dishonour of cheque sent by complainant -The petitions are Dismissed
( 1 ) CRIMINAL Petition No. 526 of 2000 is filed by the accused in CC No. 447 of 1999 on the file of the Court of the judicial Magistrate of First Class, miryalaguda to quash the said proceedings initiated against him under Section 138 of the Negotiable Instruments Act, (the Act) on the ground that notice of dishonour was i not served on him.
( 2 ) CRIMINAL Petition No. 215 of 2002 is filed by the accused in CC No. 297 of 1999 on the file of the Court of the v Metropolitan Magistrate, Vijayawada to quash the said proceedings initiated against him under Section 138 of the Act on the ground that notice of dishonour was not served on him.
( 3 ) SINCE the point for decision in both the above petitions in the same they are being disposed of by this common order.
( 4 ) THE contention of the learned Counsel for the petitioners is that a reading of Section 142 with Clause (b) of Proviso to section 138 of the Act clearly establishes that cause of action for filing of a complaint arises only after service of the notice of dishonour of the cheque on the drawer of the cheque, and so it is clear that offence under Section 138 of the Act can be said to be committed only if payment is not made within 15 days of receipt of notice of dishonour and therefore proof of receipt of notice of dishonour on the drawer of the cheque is the sine qua non for initiation of the proceedings under Section 138 of the act, and since in both the cases notices of dishonour were admittedly not served on the petitioners, petitioners cannot be said to have committed an offence under Section 138 of the Act and hence the criminal proceedings against them are liable to be quashed. Strong reliance is placed on v. Satyanarayana v. A. P. Travel and Tourism department Corporation Limited, 1997 (1) ald (Crl.) 706 (A. P), B. Adhikari v. Ponraj, 1996 Crl. LJ 180, and Central Bank of India v. Saxons Farms, (1999) 8 SCC 221, by the leaned Counsel for petitioners in support of their above contention.
( 5 ) THE learned Public Prosecutor, placing reliance on MJs. Aparna Agencies v. P. Sudhakar Rao, 2000 Crl. LJ 1005, and indian Bank v. Datla Venkata China krishnam Raju, AIR 1991 SC 908, contended that when notice is sent by registered post to correct address it should be deemed to have been served on the addresses and so the question whether notices of dishonour were served or not on the petitioners has to be determined on the basis of evidence adduced during the course of trial, and so there are no grounds to quash the proceedings.
( 6 ) IN Aparna Agencies case (supra), a learned single Judge of this Court while considering the question of service of notice of dishonour under Section 138 of the Act, referring to Indian Bank case (supra) held that if notice is sent to a proper address, even if it is returned on the ground that the accused was not found at the said address, it should be deemed to have been served on the addresse. The learned Judge referred to V. Satyanarayana case (supra) and held that since the attention of the learned Judge seems to have not been drawn to the decision of Indian Bank (supra), it is distinguishable.
( 7 ) IN B. Adhikari case (supra), a learned single Judge of the Madras High court held that when notice of dishonour is not served on the drawer, his conviction under Section 138 of the Act is unsustainable. In Central Bank of India case (supra), it is held that the object of making a provision for issuance of notice of dishonour to the drawer of the cheque in Section 138 of the act is to give him an opportunity to rectify his omission, and also to protect an honest drawer, service of notice of dishonour as contemplated by clause (b) of the proviso to section 138 of the Act, is a condition precedent for filing of a complaint under section 138 of the Act. In that case, supreme Court set aside the order of the high Court quashing the proceedings under section 138 of the Act and directed trial of the case.
( 8 ) IN CC No. 447 of 1999,
