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2012 Supreme(Guj) 91
2012 (2) GCD 1459 (Guj)
Hon’ble Mr. Justice Bankim N. Mehta
Tushar N. Shah, Proprietor of Shri Padmavati Creation
Versus
State of Gujarat & Anr.
Criminal Appeal No. 200 of 2011—Decided on 22/02/2012
Appearance :
Ms. Kruti M. Shah, for the Appellant No. 1.
Public Prosecutor, for the Opponent No. 1.
Mr. Salim M. Saiyed, for the Opponent No. 2.
Point in Issue :
Whether in the facts of the case demand notice as required under Section 138(b) of the Act was in accordance with Law.
Headnote:Head Note :
Negotiable Instruments Act, 1881 (Central Act 26 of 1881) — Sections 138, 138(b) and (c) — Dishonour of cheque — Offence of — Acquittal — Non-Service of notice according to law — Finding of — Sustainability — Bank memo indicates that complaint was informed on 16.10.2007 that cheque has returned unpaid — Complainant as alleged by him has not proved that he received information on 22.10.2007 — Therefore notice Exh. 27 sent on 16.11.2007 was clearly not in accordance with provision of law — Trial Court committed no error in acquilling the accused.
Held :
In view of bank memo Exh-25, it appears that the complainant was informed on 16.10.2007 that the cheque has returned unpaid. Therefore, presumption can be raised that the complainant was informed about return of cheque unpaid on 16.10.2007. The burden shifted on the complainant to prove that he received the information on 22.10.2007. However, the complainant did not adduce any evidence to support his claim with regard to receipt of memo regarding return of cheque unpaid. Therefore, as the notice Exh-27 was sent on 16.11.2007, it was not in accordance with the provisions of Section 138(b) of the Act and hence, the trial Court was justified in acquitting the accused on the ground that notice as required was not served to the accused.
[Para 8]
Law Laid Down :
Where demand notice was not served in accordance with provisions under Section 138(b) of the Act, no action for dishonour of cheque is maintainable.
Bankim N. Mehta, J.—Appellant – original complainant has filed this appeal and challenged the Judgment and Order of acquittal passed by the learned Additional Senior Civil Judge and Additional CJM, Surat on 5.10.2010 in Criminal Case No. 14563 of 2008 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”).
2. According to the complainant, the accused is having a retail Sari Showroom in the name of Laxmi Silk Palace and is the Proprietor of the said showroom. The accused and his son Nirajbhai Radheshyam Mishra used to purchase the goods according to their requirement. As the accused was in need of saris, after negotiation of price, purchased the goods. The bills for the purchase of goods were given to the accused and Rs. 73,182/- remained payable by the accused towards the goods purchased by him. The accused gave cheque No. 099308 dated 11.9.2007 for Rs. 10,000/- drawn on the Gandevi Cooperative Bank Limited, Goharbag, Bilimora towards part payment. The cheque on presentation to the bank returned unpaid with the endorsement of “exceed arrangement” on 16.10.2007. Therefore, notice dated 16.11.2007 as required under the provisions of the Act was served to the accused, but the accused neither replied to the notice nor paid the amount of unpaid cheque. Therefore, complaint under Section 138 of the Act was filed.
3. The trial Court issued summons. Pursuant to the summons, the accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. On completion of recording of evidence, further statement of accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. After hearing the learned advocates for the parties, the trial Court by impugned judgment acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
4. Learned advocate Ms. Shah submitted that the acquittal is recorded on the ground that notice as required under law was not served, but the complainant received the memo informing him about dishonour of cheque on 22.10.2007 and the notice was issued to the accused on 16.11.2007. Therefore, the notice was served within the time prescribed under law. Therefore, the trial Court committed error in recording finding that notice as required is not served to the accused. Therefore, the impugned judgment and order is required to be set aside and the appeal is required to be allowed.
5. Learned advocate Mr. Saiyed submitted that the bank memo indicates that the cheque was dishonoured on 16.10.2007 and the complainant has not adduced any evidence to show that he received the intimation on 22.10.2007. Therefore, the notice was not served to the accused as required under law and hence, the trial Court was justified in recording the finding that notice as required is not served. Therefore, the impugned order does not require any interference and the appeal is required to be dismissed.
6. It appears from the rival contention that the controversy between the parties is with regard to service of notice under Section 138(b) of the Act. Under Section 138 of the Act, where any cheque drawn by a person on an account maintained by him for payment of any amount of money out of that account for the discharge, in whole or in part, of any debt or other liability, is returned unpaid, either on account of insufficient fund or that it exceeds the amount arranged for, such person shall be deemed to have committed an offence. Section 138(b) proivides that when the cheque is returned unpaid, the payee or the holder in due course of the cheque, as the case may be, is required to make demand for the payment of the amount of unpaid cheque by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding return of the cheque as unpaid. Section 138(c) provides that after the service of notice, if the drawer of chequ
