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2003 (2) Crimes 398
Bombay High Court
D.G. Deshpande, J.
Ashok Chaturvedi —Petitioner
versus
Dr. (Mrs.) Nirmala Jaywant Patil and Anr. —Respondents
Criminal Writ Petition No. 542 of 2002
Decided on 19-12-2002
For the Petitioner:Ms. Lopa Munim i/b M/s. Rajesh Kothari and Co., Advocates.
For the Respondent No. 1: In person.
For the Respondent No. 2: State : Dr. R.Y. Mirza, Additional P.P.
Important Point
Where offence was committed u/s. 138 of Negotiable Instruments Act by Company but Complainant was not joined as one of the accused and no demand notice was served on it, Complaint did not suffer infirmity liable to be dismissed on that score.
Headnote:(i) Negotiable Instruments Act, 1881 — Section 138 — Complaint sought to be dismissed on ground that instrument was “interest warrant” and not a cheque — If interest warrant is a Bill of Exchange, then definition of cheque applied to it and provisions of Section 138 of the Act was attracted. (Para 9)
(ii) Negotiable Instruments Act, 1881 — Sections 138 and 141 — Cheque issued by Company — Complaint sought to be dismissed on ground that no notice was sent to company on dishonour of cheque — Company not joined as accused in complaint — No infirmity in comp-laint and it was not liable to be dismissed on that score. (Para 10)
Result : Petition dismissed.
judgment
D.G. Deshpande, J.— Heard Advocate for the petitioner, respondent No. 1 in person and the learned Addi-tional P.P. for the State.
2. Petitioner who is an accused under Section 138 of the Negotiable Instruments Act, has filed this petition for recalling the process issued by the Magistrate. The petitioner has approa-ched the Magistrate for the said purpose, his prayer was rejected. He then moved the Sessions Court in revision where also he failed and hence, this petition.
3. Following submissions were made by the counsel for the petitioner:
Firstly, according to her the main accused in case under Section 138 of the Negotiable Instruments Act (herein-after referred to as “the said Act”) in the present case would be a company, namely, Flex Industries Ltd. but since no notice was given to the company as required by Section 138 of the said Act, no demand was made from the company. The complaint is liable to be dismissed as in the absence of demand and notice and joinder of the company, the accused could not be prosecuted. The second contention of the petitioner was that interest warrant is not a cheque as contemplated by Section 138 of the said Act and the Courts below erred in taking cognizance and ordering issue of process. Third contention was that the interest warrant could not be honoured by the Bank not because of want of funds but because of mis-understanding between the said Bank and its office at Delhi, that the comp-lainant immediately offered to pay the said amount to the complainant. Two demand drafts were sent by the complainant and they were accepted and, therefore, no liability exists.
4. The respondent No. 1-complai-nant argued her own case and she contended relying upon the judgment of the Supreme Court that non-joinder of company as accused is not at all fatal, similarly not giving notice to the company is also not fatal because notice to the petitioner was given not in his individual capacity but as a Chairman and Managing Director of Flex Indus-tries Ltd. According to her, therefore, this is a sufficient compliance.
5. Secondly, the respondent No. 1 - complainant contended that Section 138 of the said Act speaks of dishonour of cheque; cheque is defined in the said Act “as a Bill of Exchange drawn on a specified banker and not expressed to be payable otherwise than on demand”, and a “Bill of Exchange” is defined in Section 5 as an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to order of a certain person or to the bearer of the instrument.
6. Thirdly, she contended that whether the complainant had offered to pay the amount subsequent to the dishonour of the cheque is of no conse-quence and so-called misunderstanding between the Bank to which the interest warrant was tendered for encashment and the Bank at Delhi is not a defence consequence so far as liability and offence of the petitioner is concerned. Respondent No. 1-complainant, there-fore, contended that the petition be dismissed with costs.
7. So far as submission of the petitioner regarding non-applicability of the provisions of Section 138 of the said Act to the interest warrant is concerned, the same argument is required to be rejected outright because in Chapter XVII of the said Act regarding the penalty in case of dishonour of certain cheques is included in Section 138 and it says:
“Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid.......”
8. The definition of the cheque is given in Section 6, it states the “cheque is a Bill of Exchange drawn on a specified banker and not expressed to be payable otherwise than on demand”, and Bill of Exchange is also defined in Section 5 as under:
“Bill of Exchange is an instrument in writing containing
