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2006(3) JLJ 417
A.K. Gohil, J.
Mohar Singh v. Lakhan Singh
Miscellaneous Criminal Case No. 5363 of 2005 : against
the order of Chief Judicial Magistrate, Vidisha, in
Criminal Case No. 1666 of 2003:
Decided on 16.5.2006.
First notice was issued to the respondent on 30.6.2003, which returned unserved. Thereafter, second notice was issued on 23.7.2003, which was also returned unserved with endorsement that the respondent is out of station for pilgrimage. Thereafter third notice was issued on 6.9.2003, which was served on 15.9.2003. The intimation of the said service of notice was given by post office to the petitioner on 10.10.2003 and since the amount was not paid despite the service of notice, the petitioner filed a complaint on 22.10.2003. Therefore, contention of the petitioner is that his complaint is within limitation, therefore the observation of the Court that the complaint should have been 1iled within one month from the date of 30.6.2003 is contrary to the provisions of law. [Para 2
Held : Admittedly, in this case the two earlier notices returned unserved on the respondent and the third notice was served on 15.9.2003. It‘s intimation was given by the post office on 10.10.2003 and the complaint has been filed on 22.10.2003. Therefore, prima facie it appears that the complaint has been filed within 45 days from the date of the receipt of the third notice. Service of demand notice is an essential ingredient of an offence under section 138 of Negotiable Instruments Act. Proof of the service of the demand notice is also necessary. If the notice is returned unserved with an endorsement that addressee is not available at station, such endorsement cannot be taken as service of notice on the accused sufficient to satisfy the requirement of section 138. Under the facts and circumstances of the case, it is clearly held that the cause of action to the petitioner will arise on the receipt of notice or on drawing presumption that the notice has been served on a particular date and the limitation will start from that date, not from the date when the notice is not validly served or received by the accused. Therefore, the contrary observation of the trial Court at this stage cannot be said to he legal and it will not have binding effect on the final decision of the case. AIR 1999 SC 3762, 1999(2) MPU 168(SC), AIR 1998 SC 3043 and 2005(II) MPWN 90 (SC) discussed and followed. [Para 11
ijØkE; fy[kr vf/kfu;e] 1881 && /kkjk 138 ijarqd ¼x½ rFkk 142¼[k½ && /kkjk 138 ds v/khu ifjokn Qkby djus ds fy, okn gsrqd && rc mn~Hkwr gksrk gS tc vfHk;qDr lwpuk izkIr djus ds 15 fnu ds Hkhrj lank; djus esa vlQy jgrk gS && lwpuk dh izkfIr dk lcwr vko‘;d gS && nks lwpukvksa dh rkehy ugha dh xbZ && ;fn rkehy dh mi/kkj.kk miyC/k ugha rc okn gsrqd mn~Hkwr ugha gksrk && okn gsrqd rhljh lwpuk dh rkehy ij mn~Hkwr gksxkA izR;FkhZ dks izFke lwpuk 30-6-2003 dks tkjh dh xbZ tks fcuk rkehy ds ykSVhA rRi‘pkr~] nwljh lwpuk 23-7-2003 dks tkjh dh xbZ tks bl i`"Bkadu ds lkFk okil ykSVh fd izR;FkhZ rhFkZ;k=k ds fy, ‘kgj ls ckgj x;k gSA rRi‘pkr~] 6-9-2003 dks rhljh lwpuk tkjh dh xbZ] tks fd 15-9-2003 dks rkehy gqbZA lwpuk dh dfFkr rkehy dh lwpuk Mkd?kj }kjk ;kph dks 10-10-2003 dks nh xbZ rFkk D;ksafd lwpuk dh rkehy ds ckotwn jde dk lank; ugha fd;k x;k] blfy, ;kph }kjk 22-10-2003 dks ifjokn Qkby fd;k x;kA vr%] ;kph dk ladFku gS fd mldk ifjokn ifjlhek ds Hkhrj gS] vr% U;k;ky; dk ;g laizs{k.k fd ifjokn 30-6-2003 ls ,d ekl ds Hkhrj Qkby fd;k tkuk pkfg, Fkk] fof/k ds mica/kksa ds izfrdwy gSA ¼iSjk 2 vfHkfu/kkZfjr % Lohd`r :i ls] bl ekeys esa] nks iwfoZd lwpuk,a izR;FkhZ ij fcuk rkehy ykSVha rFkk rhljh lwpuk dh rkehy 15-9-2003 dks gqbZA mldh lwpuk Mkd?kj }kjk 10-10-2003 dks nh xbZ rFkk ifjokn 22-10-2003 dks Qkby fd;k x;k gSA vr%] izFken`"V~;k ;g izrhr gS fd ifjokn rhljh lwpuk dh ikorh dh rkjh[k ls 45 fnu ds Hkhrj Qkby fd;k x;k gSA ek¡x lwpuk dh rkehy ijØkE; fy[kr vf/kfu;e dh /kkjk 138 ds v/khu vijk/k dk vko‘;d ?kVd gSA ek¡x lwpuk dh rkehy dk lcwr Hkh vko‘;d gSA ;fn lwpuk bl i`"Bkadu ds lkFk fcuk rkehy okil vkrh gS fd izkIr djus okyk ‘kgj esa ugha gS] rc ,sls i`"Bkadu dks /kkjk 138 dh vis{kk dk lek/kku djus okyh lwpuk dh rkehy ds :i esa ugha fy;k tk ldrkA ekeys ds rF; rFkk ifjfLFkfr;ksa ds v/khu] ;g Li"V :i ls vfHkfu/kkZfjr gS fd ;kph dks okn gsrqd lwpuk dh ikorh ij ;k ;g mi/kkj.k djus ij mn~Hkwr gksxk fd lwpuk fdlh fof‘k‘V rkjh[k dks rkehy gks xbZ gS rFkk ifjlhek bl rkjh[k ls izkjaHk gksxh] u fd ml rkjh[k ls tc lwpuk dh fof/kekU; rkehy ugha gqbZ gS vFkok izR;FkhZ }kjk izkIr ugha gqbZ gSA vr%] bl izØe ij fopkj.k U;k;ky; dh izfrdwy leqfDr oS/k ugha dgh tk ldrh rFkk mldk ekeys ds vafre fofu‘p; ij ck/;dkjh izHkko ugha gksxkA , vkb vkj 1999 ,l lh 3762] 1999¼2½ ,e ih ,y ts 168 ¼,l lh½] , vkb vkj 1998 ¼,l lh½ 3043 rFkk 2005¼2½ e-iz- ohDyh uksV~l 90 ¼mPp U;k-½ foosfpr rFkk vuqlfjrA ¼iSjk 11
1. Petitioner has filed this petition under section 482 CrPC for quashment of the order dated 29.8.2005 passed by the Chief Judicial Magistrate, Vidisha in Criminal Case No. 1666/03, whereby though the trial Court rejected the application filed by the respondent-accused on 15.4.2005 for dismissing the complaint on the ground of barred by limitation, but observed that the complaint ought to have been filed within the period of 15 days from the first notice dated 30.6.2003. Against that observation, the petitioner has tiled this petition because the observation may come in his way at the time of final disposal and may prejudice this case.
2. The brier facts of the case are that the respondent took loan of Rs.222,000/- from the petitioner and for repayment of the said loan he issued a cheque No. 164351 dated 11.6.2003 or Allahabad Bank, Branch Vidisha. The aforesaid cheque was presented for collection to his banker and the said cheque was dishonoured on 21.6.2003 with all endorsement for want of fund and thereafter on 23.6.2003 the Bank intimated about the dishonour of the cheque. First notice was issued to the respondent on 30.6.2003, which returned unserved. Thereafter, second notice was issued on 23.7.2003, which was also returned unserved with endorsement that the respondent is out of station for pilgrimage. Thereafter third notice was issued on 6.9.2003, which was served on 15.9.2003. The intimation of the said service of notice was given by post office to the petitioner on 10.10.2003 and since the amount was not paid despite the service of notice, the petitioner tiled a complaint on 22.10.2003. Therefore, contention or the petitioner is that his complaint is within limitation, therefore the observation of the Court that the complaint should have been filed within one month from the date of 30.6.2003 is contrary to the provisions of law.
3. I have heard the learned counsel for the parties. The contention of the learned counsel for the petitioner was that the service of notice is a mandatory requirement and without service of notice the complaint cannot be filed unless 15 days' time is granted to the respondent after service. Therefore, the petitioner was entitled to repeat the notice and to intimate him about the dishonour of cheque and to make a demand from him. Petitioner submitted that the provisions of section 138 and section 142 of the Negotiable Instruments Act are very clear and according to the aforesaid provisions the period of limitation of one month will expire after 15 clays from the receipt of the notice and he laid much emphasis on the words "receipt of the said notice" as provided in clause (c) of the proviso to section 138 of the Act. His further contention was that if the notice of 30.6.2003 would have been served or the respondent would have refused, then in that case certainly he could have waited for 15 days and filed complaint within 30 days but when the notice was not served and under section 142 of Negotiable Instruments Act cause of action will arise on receipt of notice which is a mandatory requirement, therefore, it was necessary for the petitioner to serve a repeat notice to the respondent, in which he has not committed any illegality and has tiled the complaint within limitation. Therefore, his contention was that the complaint was within time and the observation of the Court is not legal, therefore, the same is liable to be quashed, as the same may come in his way at the time of final disposal, which ultimately shall adversely prejudice his case.
4. In reply Shri R.K. Sharma, learned counsel for the respondent supported the order and his contention was that if the notice was returned unserved on 30.6.2003, the petitioner was entitled to file complaint treating it as a notice served, therefore, the petitioner has not filed the complaint within time.
5. After hearing the rival contentions of the learned counsel for the parties for resolving the controversy involved in this petition, it would be us
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