Back
2012(2) Bankmann 179 (Uttar.)
UTTARAKHAND HIGH COURT
Servesh Kumar Gupta, J.
M.C. Gupta and Anr. —Applicants
versus
State of Uttarakhand
and Ors. —Respondents
Criminal Misc. No. 624 of 2005
Decided on 27.8.2011
Held: Learned counsel on behalf of the respondent has argued that the notice dated 27.6.1995 was not in the spirit, as envisaged by Section 138(b) of the Act. He also cited the following precedents:
1. Suman Sethi v. Ajay K. Churiwal and another, AIR 2000 Supreme Court 828.
2. K.R. Indira v. Dr. G. Adinarayana, 2004(1) Apex Criminal 696 : AIR 2003 Supreme Court 4689.
3. Rahul Builders v. Arihant Fertilizers and Chemicals and another, 2007(6) R.A.J; 223 : (2008)2 Supreme Court Cases 321.
By going through all these judgments, relied on by the learned counsel of the private respondents, the position of law has not been differently interpreted. In all these Rulings, the notice sent by the drawee was not deemed for commencing the limitation due to the reason because it did not mention the specific demand of money therewithal period for payment stipulated under the provisions of the Act, was also not mentioned in those notices. Then in that case, such a notice was held not to be a legal notice as envisaged by the provisions of Section 138(b) of the Act.
Having carefully gone through the notice dated 27.6.1995, in the instant case, the intention of the drawee of cheque isasmuch clear as he sent this notice to demand Rs.1,10,000 i.e. amount of cheque dated 23.5.1995 and the said demand was made to make the payment immediately. It is not the intention of the Legislature that specific period of 15 days should have been mentioned in this notice. The word ‘immediately’ covers the period within 15 days. So, this Court is of the view that this was perfectly a legal and valid notice, as has been envisaged under Section 138(b) of the Act and the complaint should have been filed for recovery of the said money within 45 days from the date 27.6.1995 mentioned in the notice. Instead, the complaint was filed on 31.1.1996. This way, this complaint is time barred and the cognizance order dated 4.2.1997 made on the basis of such a complaint cannot be allowed to exist.
For the reasons as aforementioned, the petition deserves to be allowed. It is allowed. Order of cognizance dated 4.2.1997 and the proceedings of complaint case no. 236/1996, titled aforementioned, are quashed hereby. (Paras 13 to 16)
Result: Petition allowed.
Servesh Kumar Gupta, J.—By way of this criminal application, the prayer has been made to quash the order of cognizance dated 4.2.1997 passed by the Civil Judge (Junior Division) Rishikesh in criminal complaint case No. 236 of 1996, M/s Prestige Lights Ltd. v. M/s Gupta Agencies.
2. Heard learned counsel for the parties and perused the material available on record.
3. Factual matrix, qua the controversy behind the entire episode, is that there were business terms between M/s Gupta Agencies and M/s. Prestige Lights Limited. The latter manufactures the electric goods while the former was a dealer of M/s Prestige Lights. Certain goods were supplied by M/s Prestige Lights to M/s. Gupta Agencies and in consideration, as a price of those goods, a cheque No. QVJ/347l09 dated 23.5.1995 was issued by M/s Gupta Agencies to M/s. Prestige Lights Ltd. to the tune of Rs.1,10,000 That cheque, while presented for encashment, was dishonoured by the bank concerned due to insufficiency of funds in the account of drawer of the same.
4. Thereafter a notice dated 27.6.1995 was sent on behalf of M/s Prestige Lights by Sri M.K. Goyal, Managing Director to Sri M.C. Gupta, the proprietor of M/s Gupta Agencies. For probity, it would be expedient in the interest of justice to reproduce the language of that letter as it is:
“Dear Sir,
Your Cheque No. QVJ 347109 dated 23.5.95 for Rs.1,10,000 has been returned to us as unpaid by your Bank, due to shortage of funds. We regret that a person like you should also not keep its commitment.
As you know, under Section 138 of Negotiable Instruments Act, it is a criminal offence, if the cheque is returned as unpaid and you know that there is severe penalty against this offence.
You are therefore requested to please send us the Demand Draft for this payment immediately, otherwise we will have no option, but to send you a legal notice and thereafter lodge a criminal complaint against you. We hope you will understand the gravity of the situation very well and will contact us on telephone immediately.”
5. After sending this notice, the payment was not received by M/s Prestige Lights and another notice dated 1.1.1996 was again sent by M/s Prestige Lights to M/s Gupta Agencies, paragraph 3 whereof states that when the cheque was submitted to the State Bank, it was dishonoured and returned to the drawee on dated 19.12.1995 due to insufficiency of funds.
6. Through this notice, the payment was asked within 15 days of the receipt of the same. Since M/s Gupta Agencies did not make any payment, as asked in the notice dated 1.1.1996, so within one month, as stipulated by the provisions of Section 142(b) of the Negotiable Instruments Act, 1881 (hereinafter will be referred as the Act), the complaint was filed on dated 31.1.1996 and after having the evidence under Sections 200 and 202 Cr.P.C., the impugned order of cognizance dated 4.2.1997 has been passed.
7. It is also pertinent to mention that as per law, prevailing at that time the objections were raised by M/s Gupta Agencies against the order of cognizance before the Magistrate court itself but those objections were rejected on merits and the Magistrate was of the view that the complaint well within the time limitation. M/s Gupta Agencies filed a revision before the court of Sessions and that too was dismissed, inter alia, as not maintainable on the basis of law laid down in the case of Subramaniam v. State of Maharashtra1 besides Adalat Prasad v. Rooplal Jindal and others.2
8. Feeling aggrieved by the order of Magistrate as well as that of the Sessions Judge, this petition has been filed.
9. Learned counsel of the petitioner has contended that the first notice dated 27.6.1995 was a valid and legal notice, as envisaged by Section 138(b) of the Act and the complaint by M/s Prestige Lights Ltd. could have been filed within 45 days from the date of receipt of this notice by the applicant. This notice was a perfect notice, as required under the provisions of Section 138(
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
