IMPORTANT POINT
Mere non-signing of notice by counsel issued under Section 138 of Negotiable Instruments Act cannot be a ground to quash the proceedings.

M. Thanikachalam, J. —The accused in C.C.No.4530 of 2002 on the file of the IX Metropolitan Magistrate Court, Saidapet, Chennai, has filed this petition, to quash the proceedings against him, alleging that there was no proper and valid notice, before initiating criminal proceedings, that on the date mentioned in the notice, no cheque was issued by him and therefore, he was not in a position to honour the demand, that the notice said to have been issued, before the prosecution, is not signed by the counsel. On these grounds, according to the petitioner, the further proceedings in the criminal case are unwarranted and therefore, he should be relieved from facing the unnecessary ordeal of the trial.

2. The respondent herein as complainant filed a private complaint against the petitioner, arraying him as an accused, for appropriate punishment under Section 138 of the Negotiable Instruments Act. It is the case of the prosecution, that the accused/petitioner, in Order to repay the amount borrowed, along with interest, in equal monthly instalments, issued 12 cheques and one of which is the cheque dated 15.12.2001 for a sum of Rs.2,000 that when this cheque was tendered for collection, the same was returned without honouring, as payment was stopped by the drawer, and that despite the notice and its acknowledgment, the accused failed to pay the amount and therefore, he should be dealt with accordingly.

3. The learned counsel for the petitioner/accused submits that the accused had not issued the cheque dated 15.12.2002, as mentioned in the notice and therefore, the non-payment of the amount for the said cheque, would not attract the penal provisions of Section 138 of Negotiable Instruments Act.

4. As seen from the notice, preceding to the complaint, the complainant/respondent demanded payment, for the return of the cheque dated 15.12.2002. It is an admitted position that the accused had not issued any cheque dated 15.12.2002. Therefore, according to the learned counsel for the petitioner, the non-payment of the amount, for the cheque bounced, after the issuance of notice, would not attract the penal provisions.

5. On the other hand, the learned counsel for the respondent submits, that the date mentioned in the notice as 15.12. 2002, is a typographical error and the actual date of the cheque is 15.12.2001, which is very well, known to the accused, the further fact being, the cheque number is given correctly as ‘900889’. The contention of the learned counsel for the respondent appears to be quite reasonable, which could be seen even from the averments in the notice. The notice reads giving the date of the cheque as 15.12.2002 bearing No. 900889, that the cheque was presented on 30.5.2002 and the same was not honoured, because of the payment stopped by the drawer, on 31.5.2002. If really, the cheque is dated 15.12.2002, as incorrectly stated, the subsequent dates would not be 30.5.2002 and 31.5.2002. Taking advantage of the fact that the date of the cheque is not given correctly as 15.12.2001, and the date is given as 15.12.2002, which should be described as typographical error, a contention is raised, as if as per the notice, the accused has not issued any cheque and therefore, there is no liability.

6. Considering the cheque number, which admittedly belongs to the accused and the subsequent notice, non reply for the notice though received, I am of the considered opinion, that the date mentioned in the notice as 15.12.2001, will not invalidate the notice. The notice is issued, to enable the drawer of the cheque, to pay the amount within the stipulated time. When that purpose is served, then it is futile on the part of the drawer to contend, that because of the incorrect date, he was unable to pay the amount. Really, if the accused had issued some other cheque dated 15.12.2002 bearing No.900889, then this contention would be considered at least, whether it could be accepted or not. It is not

the case of the petitioner/accused.

Further,