DELHI HIGH COURT
S.K. Agarwal, J.
Lok Housing & Constructions Ltd. - Petitioners
versus
M/s. DCM Daevoo Motors Ltd. & Anr. - Respondents
Crl. M. (M) No. 102 of 1998
Decided on 12-7-2002

IMPORTANT POINT
In a case of dishonour of cheque if accused on demand notice pays certain amount and pleads for some more time and that within 15 days of service of notice he is deemed to have impliedly waived notice and complaint on second presentation of cheque and notice would be maintainable in law.

Headnote:(i) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque- Petition to quash complaint and proceedings on plea that complaint based on second demand notice was not maintainable in terms of Supreme Court judgment in Sadanandan Bhadran's case Question of implied waiver and doctrine of estoppel - Notice was served upon petitioner on 6-9-1996 and petitioner approached complainant on 7-9-1996 and sought more time to arrange funds - To show bona fides, petitioner issued a cheque for Rs. 5 lacs which was cleared - Complainant accepting bona fides of petitioner opted to wait for two weeks and represented cheque - Conduct of petitioners amounted to implied waiver of notice before cause of action had arisen - Petitioners were estopped from pleading otherwise.

       Held: Learned counsel for the petitioners also argued that in such like cases the plea of waiver cannot be availed of by the complainant. In support of his submission, he placed reliance on the following observations made by the Supreme Court in Sadanandan Bhadran's case (supra):-

       "At that stage it will not be a question of waiver of the right of the payee to prosecute the drawer but of absolution of the drawer of an offence, which stands already committed by him and which cannot be committed by him again". (emphasis supplied)

       In my considered view, the above observations are not applicable to the facts of this case. In Sadanandan Bhadran's case (supra), the appellant had sent lawyer's notice to the respondent on 15-1-1991 calling upon him to pay the amount. On receipt of the notice respondent approached the appellant and requested for time to pay the amount and in view of the assurance given the appellant did not initiate further proceedings. As the respondent did not keep the promise thereafter the cheque was presented on 4-5-1991. In this case, however, at the risk of repetition, as noticed above, the period of 15 day's after the service of notice, had not yet expired and the offence was not committed. Therefore the question of "absolution of the drawer of an offence" did not arise. The notice was served on 6-9-1996 and on 7-9-1996, the petitioners approached the complainant and sought more time and in order to show their bona fide they sent a cheque of Rs. 5.0 lacs. The complainant accepted the representation of petitioners and opted to wait for two weeks more. In this view of the matter, it would amount to an implied waiver of notice, before the cause of action had arisen and the petitioners are estopped from pleading otherwise. The situation would have been different if the statutory period of 15 days had expired after the receipt of notice, the cause of action had arisen and the offence under Section 138 of N.I. Act was committed. It was so in Sadanandan Bhadran's case (supra). This view is in consonance with the observations made in that case, which are as under:

       "Needless" to say, the primary interest of the payee is to get his money and not prosecution of the drawer recourse I.O which normally is taken out of compulsion and not choice. For this reason it must be held that the cheque can be presented any number of times during the period of its validity." (Paras 11 & 12)

       (ii) Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973 - Section 178(d) - Dishonour of cheque - Complaint filed in Delhi - Territorial jurisdiction questioned on plea that cheque was drawn on bank in Bombay, transactions had taken place between parties in Bombay - Since offence consisted of several acts, done in different local areas, complaint could have been tried in any of such areas where such act was done - Cheques were presented in Delhi Bank and demand notice was issued in Delhi, Court at Delhi had jurisdiction to try complaint. (Paras 14 & 15)

       (iii) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Quashing petition on plea that there was no existing debt or liability - Court can not go into merits in quashing petition - No requirement that complainant must specifically allege in complaint that there was a subsisting liability - Burden of proof that there was no existing debt or liability would be on petitioners. (Para 17)

       Result: Petition dismissed.