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2003 Supreme(Kar) 410
Karnataka High Court
KRISHNA BHUPATHI - Appellant
Versus
CHANDANA CONSTRUCTIONS - Respondent
Decided On : 05-30-03
CRIMINAL PETITION : 3205 of 2001
Sri Pramod, T.Narayana Gowda, V.K.Dwarakanath
Headnote:Whether notice invalid
NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138 -Notice claiming an amount less than that of the amount -whether amounts to omni bus claim? No.
[S. R. Bannurmath, J.] - In so far as the ground that amount claimed in notice (Rs.1,95,000) is less than the cheque amount (Rs.1,95,600) and the reference to SUMAN SETHI vs AJAY K. CHURIWAL is concerned, it is to be noted that in that decision, the Hon ble Supreme Court was considering the fact "in the notice, demand has to be made for the said amount i.e., the cheque amount" and in this regard as in that case in the notice an omnibus demand was made without specifying what was due under the dishonoured cheque, the Apex Court held that the notice might fail to meet the legal requirement and may be regarded as bad in law. Even considering this pronouncement and the principles laid down in the same, it cannot be said that the respondent has made omnibus demand without specifying what was due under the dishonoured cheque. Even otherwise as the difference between the two hardly being Rs.600/- as laid down by the Court in the case of NITYANAND Vs. SMT. JAMUNA PRAKASH (2002 (1) KLJ 448) "notice cannot be viewed in an hypertechnical manner. The purpose of giving the notice is to bring it to the notice of the drawer of the cheque that the cheque he has issued has been dishnoured and to put him on guard with regard to making of payment covered by that cheque within the time prescribed so as to avoid prosecution". As noted by me as the difference of amount mentioned in the cheque and claimed under the notice being hardly Rs.600/- the complaint cannot be thrown out only on this hypertechnical point especially exercising inherent jurisdiction under Section 482 CPC and hence, the second point raised by the accused/petitioner is also devoid of merits.
Cases Referred: 2000 SCC (Crl) 414; AIR 1999 SC 1090; 1 (2000) Banking case 668; AIR 1999 SC 3762; 2002(1) KLJ 448.
Premature complaint
CRIMINAL PROCEDURE CODE, 1973 - Section 482 & 200 -Private complaint for dishonour of cheque -presented one day before the due date -whether illegal? No.
[S. R. Bannurmath, J] - The date when the notice sent reaches the drawer of the cheque, the period of 15 days (within which he has to make the payment) ha started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. In the present case admittedly the notice was received by the petitioner on 25-1-2001 and the period of 15 days starts running from that day itself and this would expire on 8-2-2001. As per Section 142 of the Act the complaint has to be filed within one month from this date (8-2-2001). Admittedly in the present case, the complaint is on 9-2-2001 which is clearly within the time limit prescribed.
( 1 ) THIS petition is filed under Section 482 of the Cr. P. C. , by the accused praying for quashing of the proceedings in C. C. No. 29047 of 2001 on the file of the XII Additional Chief Metropolitan Magistrate, Bangalore.
( 2 ) THE brief facts of the case are as follows. The respondents-complainant has filed a private complaint in P. C. R. No. 240 of 2001 (now numbered as C. C. No. 29047 of 2001) before the learned magistrate, Bangalore, under Section 200 of the Cr. P. C. , to initiate criminal action against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'act'), on the ground that the petitioner had engaged the services of the respondent for execution of civil works and in this regard, the petitioner was due to the respondent a sum of Rs. 7. 5 lakhs. In this regard the petitioner has issued a cheque dated 14-11-2000 for a sum of Rs. 1,95,600/- drawn on the Indian overseas Bank, Bangalore, towards discharge of the aforesaid liability in part. The said cheque was presented by the respondent through his banker but the same came to be returned unpaid with an endorsement 'payment stopped by the drawer'. On receipt of the said endorsement on 17-1-2001, the respondent immediately got issued a legal notice dated 20-1-2001 to the petitioner calling upon him to make good the amount involved in the dishonoured cheque within 15 days of the receipt of the notice. According to the complainant even though the petitioner received the notice on 25-1-2001 neither he made any arrangement to pay back the amount nor any reply was given to the notice and as such, as the action of the petitioner amounted to commission of an offence under Section 138 of the Act, the present complaint filed on 9-2-2001.
( 3 ) ON receipt of the complaint and after recording the sworn statement of the complainant and being satisfied of existence of prima facie case, the learned Magistrate ordered for issuance of process against the petitioner. It is this action and initiation of proceedings which are sought to be quashed in the present petition.
( 4 ) THE main ground of attack of the petitioner is that as the notice was received on 25-1-2001 by him as per Section 138 of the Act, the cause of action arises only on 10-2-2001 and hence filing of the complaint one day prior is premature, illegal and hence the entire proceedings are liable to be quashed. It is also contended that though the cheque was issued for a sum of Rs. 1,95,600/- in the notice issued demand is made only for a sum of Rs. 1,95,000/- which is less than the cheque amount and hence relying the pronouncement of the Apex Court in the case of Suman Sethi v Ajay K. Churiwal and Another, it is contended that the notice fails to meet the legal requirement and hence bad in law. It is also contended that in fact the case of the petitioner is that he has already made payments of the amount due on 17-11-2001 itself that is much prior to the presentation of the cheque to the Bank and suppressing this aspect the complainant has filed the present false case not only to get himself enriched illegally but also to harass the petitioner. On these among other grounds it is contended that the entire proceedings being illegal and contrary to the mandatory requirements under Section 138 read with Section 142 of the Act, are liable to be quashed.
( 5 ) THE facts especially the various dates mentioned are not much in dispute. The only question to be considered insofar as the first point is concerned is that whether lodging of the complaint on 9-2-2001 is within the time prescribed as per the complaint or whether it is premature as per the petitioner-accused. The petitioner has relied upon the pronouncement of the apex Court in the case of M/s. Saketh India Limited and Others v M/s. India securities Limited. While considering the period of limitation to be reckoned the Hon'ble Supreme Court has observed thus:"ordinarily in c
