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1999 Supreme(P&H) 739
PUNJAB & HARYANA HIGH COURT
M.L.Singhal, J.
Kapoor Brothers Roller Floor Mills
Versus
Jyoti Solvex And Refinery P Ltd
Criminal Revision No. 846 of 1997,
Decided On : JULY 28, 1999
A complainant in a case under Section 138 of the Negotiable Instruments Act, 1881, should be allowed to examine additional evidence to establish when they received information from their banker about the bouncing of the cheques, as this information is essential for determining whether the accused had received 15 days' clear time to make payment from the date of receipt of the notice.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 138 - DISHONOUR OF CHEQUES - NOTICE - SUFFICIENCY - SECTION 311 CR.P.C. - POWER TO SUMMON MATERIAL WITNESS - EXAMINATION OF WITNESS ESSENTIAL FOR JUST DECISION.
Fact of the Case:
Complainant, M/s. Kapoor Brothers Roller Floor 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 Magistrate dismissed the complaint, holding that the notice given to the accused informing them about the bouncing of the cheques did not comply with the provisions of Section 138-B of the Act.
Finding of the Court:
The High Court set aside the Magistrate's order and remanded the case back to the Magistrate for further proceedings. The High Court held that the complainant should be allowed to examine additional evidence to establish when they received information from their banker about the bouncing of the cheques, as this information was essential for determining whether the accused had received 15 days' clear time to make payment from the date of receipt of the notice.
Issues: 1. Whether the notice given to the accused informing them about the bouncing of the cheques complied with the provisions of Section 138-B of the Negotiable Instruments Act, 1881? 2. Whether the complainant should be allowed to examine additional evidence to establish when they received information from their banker about the bouncing of the cheques?
Ratio Decidendi: 1. The High Court held that the Magistrate erred in dismissing the complaint solely on the ground that the notice given to the accused did not comply with the provisions of Section 138-B of the Act. The High Court noted that Section 138-B was not applicable in this case as the cheques were presented to the bank within six months from the date they were drawn. 2. The High Court held that the complainant should be allowed to examine additional evidence to establish when they received information from their banker about the bouncing of the cheques. The High Court noted that this information was essential for determining whether the accused had received 15 days' clear time to make payment from the date of receipt of the notice.
Final Decision: The High Court set aside the Magistrate's order and remanded the case back to the Magistrate for further proceedings.
M. L. Singhal, J.
1. M/s. Kapoor brothers Roller Floor Mills.64, Industrial Area, panchkula, Haryana through Shri Vinod Kumar, itspartner and attorney instituted complaint under Sec.138 of thenegotiable Instruments Act, 1881 (in short the Act) as amended by thebanking, Public Financial Institutions and negotiable Instrumentslaws (Amendment) Act, 1988 read with Sec.406/420 IPC, againstm/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 besides interest and other miscellaneous charges/expenes which were not paid Accused gave Cheque nos.105822, 105831, 105895, 105896, 105897, 105898, 107049 and 107050 dated 10.11.1994, 26.11.1994 10.12.1994, 17.12.1994, 24.12.1994, 30.12.1994, 5.1.1995 and 16.1.1996 and sum of Rs.66,500/-, 68,385/-67,000/-, 68,385, 67,900/- 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 complainant 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 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 notices were duly served upon the accused. Despite the receipt of registered AD and UPC notices, 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 Sec.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 Sec.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 conduct to the provisions of Sec.138-B of the Act and this submission weighed with the learned Magistrate and he accordingly dismissed the complaint vide order dated 30.5.1997 and refused to proceed further with the complaint.
4. Aggrieved from this order dated 30.5.1997 passed by Chief judicial Magistrate. Panchukula, M/s. Kapoor Brothers Roller Flour mills, 64, Industrial Area, Panchukula 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 cheques 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 petitioner got cause of action against the accused after they had been informed about the bouncing of the cheques by their banker
