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PUNJAB AND HARYANA HIGH COURT
M.L. S1NGHAL, J.
Crl. Revision No. 846 of 1997
Decided on 28.7.1999
KAPOOR BROTHERS ROLLER FLOOR MILLS
versus
JYOTI SOLVEX AND REFINERY (P) LTD.
Counsel for the Parties :
For the Petitioner:Mrs. Vanita Sapra Sataria, Advocate. For the Respondent:Mr. Vivek Suri, Advocate.
In order to establish a valid cause of action under Section 138 of the Negotiable Instruments Act, 1881, the complainant must provide sufficient evidence to establish when they received information about the bouncing of the cheques from their banker.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 138 - SECTION 138-B - DISHONOUR OF CHEQUES - NOTICE - SUFFICIENCY - INTERPRETATION - SECTION 311 CR. P.C. - SUMMONING OF WITNESSES - ESSENTIALITY FOR JUST DECISION.
Fact of the Case:
The complainant, M/s. Kapoor Brothers Roller Flour Mills, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against the accused, M/s Jyoti Solvex and Refinery (P) Ltd. and its directors, for dishonoring eight cheques issued by the accused. The complainant alleged that despite receiving a notice demanding payment within 15 days, the accused failed to make the payment.
Finding of the Court:
The Magistrate dismissed the complaint, holding that the notice given to the accused did not comply with the provisions of Section 138-B of the Act. The Magistrate found that the complainant failed to provide sufficient evidence to establish when they received information about the bouncing of the cheques from their banker.
Issues: 1. Whether the notice given to the accused complied with the provisions of Section 138-B of the Negotiable Instruments Act, 1881? 2. Whether the complainant provided sufficient evidence to establish when they received information about the bouncing of the cheques from their banker?
Ratio Decidendi: 1. The court held that the notice given to the accused was not in compliance with Section 138-B of the Act as it did not contain the date of receipt of information about the bouncing of the cheques from the bank. 2. The court held that the complainant failed to provide sufficient evidence to establish when they received information about the bouncing of the cheques from their banker. The court noted that no official from the complainant's bank or the bank where the cheques were presented was examined during the preliminary inquiry.
Final Decision: The court set aside the Magistrate's order and remanded the case back to the Magistrate for further proceedings. The Magistrate was directed to allow the complainant to examine additional evidence to establish when they received information about the bouncing of the cheques from their banker.
M.L. Singhal, J. - M/s. Kapoor Brothers Roller Flour Mills, 64, Industrial Area, Panchkula, Haryana through Shri Vinod Kumar, its partner and attorney instituted complaint under Section 138 of the Negotiable Instruments Act, 1881 (in short the Act) as amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 read with Section 406/420 IPC, against M/s Jyoti Solvex and Refinery (P) Ltd. Food Processor and its two Directors S/Shri T.C. Jain and Vijay Jain on the allegations that on the request of the accused, the complainant supplied wheat products to the accused from time to time on credit. Eventually balance of Rs. 5,43,210/- became due beside interest and other miscellaneous charge/expenses which were not paid. Accused gave Cheque Nos. 105822, 105831, 105895, 105896, 105897, 105898, 107049, and 107050 dated 10.11.94, 26.11.94, 10.12.94, 17.12.94, 24.12.94, 30.12.94, 5.1.95 and 16.1.96 and sum of Rs. 66,500/-, 68,385/-, 67,000/-, 68,385/-, 67.900/-, 67.620/-, 61,620/- and 67,620/- with the assurance that the cheques would be encashed on presentation. It was also assured that rest of the balance payment will be made after some time. These cheques were deposited by the complainant with their bankers. Complainant obtained the credit facilities from the Bank against these cheques with the understanding that the cheques would be encashed in due course of time. Cheques on presentation were returned unpaid with the memo "exceeds arrangements" received by the comptainant on 22.5.1995. Amount of cheque with interest and other charges after calculation were debited to the account of the complainant. After receipt of information about the bouncing of cheques from their banker, the complainant. After receipt of information about the bouncing of cheques from their banker, the complainant sent notice dated 26.5.1995 to the accused at their official as well as at their residential addresses through registered AD and also through UPC informing the details and demanding thereby to make payment of the dishonoured cheques with interest and the balance outstanding amount within 15 days of the receipt of notice. Registered AD and UPC notice were duly served upon the accused. Despite the receipt of registered AD and UPC notice, accused did not make payment within the stipulated time.
2. After recording preliminary evidence, the learned Magistrate found that there are sufficient grounds to proceed against the accused under Section 138 of the Act and put them on trial.
3. After appearance of the accused, the accused submitted before the Magistrate that no offence under Section 138 of the Act was made out against them as notice given to them informing them about the bouncing of the cheques and calling upon them to make payment did not conduce to the provision of Section 138-B of the Act and this submission weighed with the learned magistrate and he accordingly dismissed the complaint vide order dated 305.1997 and refused to proceed further with the complaint.
4. Aggrieved from this order dated 30.5.1997 passed by Chief Judicial magistrate, Panchkula, M/s. Kapoor Brothers Roller Flour Mills, 64, Industrial Area, Panchkula through Sri Vinod Kumar, its partner and attorney have come up in revision to this Court.
5. I have heard the learned Counsel for the petitioner, learned Counsel for the respondents and have gone through the record.
6. Learned Counsel for the petitioner submitted that the cheques were presented by the petitioner (complainant) to their banker on 5.5.1995 and they were informed on 22.5.1995 that the cheques had been dishonoured and they after the receipt of the information about the bouncing of the cheque from their banker sent notice dated 26.5.1995 to the accused and after notice dated 26.5.1995 had been served upon the accused through registered AD as well as through UPC, they instituted this complaint on 15.6.1995. Learned Counsel for the petitioner submitted that the petitio
