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2016 Supreme(MP) 935
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BENCH
RAJENDRA MAHAJAN, J.
Rajesh Kumar Samaiya - Applicant
Versus
M/s Mahaveer Stationers Jabalpur and another - Respondents
M. Cr.C. No. 2710 of 2012
Decided On : 18-03-2016
For the Applicant : Shri J.L. Soni, Learned counsel.
For the Respondent: Shri Vinay Kumar Choukse, Learned Counsel., Shri Y.D. Yadav, Learned Panel Lawyer.
The central legal point established in the judgment is the mandatory requirement of giving a valid demand notice to the drawer before filing a complaint for prosecution under Section 138 of the Negotiable Instruments Act. The absence of a valid demand notice can render the complaint not maintainable and lead to the quashing of criminal proceedings against the accused.
Headnote:
Section 138 - Negotiable Instruments Act - [138] - The court discussed the requirements of the demand notice to be given to a drawer before filing the complaint against him for his prosecution under Section 138 of the Act. It highlighted the mandatory nature of giving a demand notice and the consequences of not fulfilling this requirement. The court referred to various case laws to emphasize the importance of a valid demand notice and how its absence can lead to the quashing of criminal proceedings against the accused.
Fact of the Case:
The applicant filed a criminal complaint against the respondent for prosecution under Section 138 of the Negotiable Instruments Act. The respondent challenged the maintainability of the complaint on the grounds of not receiving a valid demand notice prior to the filing of the complaint. The court analyzed the facts and legal provisions related to the demand notice requirement.
Finding of the Court:
The court found that the applicant had not given a valid demand notice to the respondent before filing the complaint, as required by Section 138 of the Act. It held that the absence of a valid demand notice rendered the complaint not maintainable against the respondent.
Issues: The main issue was whether the absence of a valid demand notice prior to filing the complaint rendered the prosecution under Section 138 of the Act not maintainable against the respondent.
Ratio Decidendi: The court's decision was based on the mandatory nature of giving a demand notice to the drawer before filing the complaint under Section 138 of the Act. It relied on various case laws to support its finding that the absence of a valid demand notice can lead to the quashing of criminal proceedings against the accused.
Final Decision: The court dismissed the application under Section 378(4) of the Cr.P.C. and upheld the impugned order quashing the charge under Section 138 of the Act against the respondent.
RAJENDRA MAHAJAN, J.
1. With the consent of learned counsel for the parties, the matter is finally heard at the admission stage.
The applicant has preferred the application under Section 378(4) of the Cr.P.C. seeking leave to appeal against the order of acquittal dated 24.11.2011 passed by the Third Additional Sessions Judge, Jabalpur in Criminal Revision No.278/2011, whereby the learned ASJ has quashed the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') framed against respondent No.1 Sanad Kumar Jain setting aside the order of framing the charge dated 27.11.2011 passed by the JMFC (Shri Vivek Shukla) Jabalpur, in Criminal Complaint Case No.12763/08.
2. Brief facts of the case for just and proper adjudication of the application are thus:
(2.1) On 18.08.2008, the applicant filed a criminal complaint against the respondent No.1 for his prosecution under Section 138 of the Act in the court of JMFC, Jabalpur with the averments that Azad Kumar Jain is one of the partners of firm M/s Mahavir Stationers (for short 'the firm') based at Jabalpur. He does all types of business transactions on behalf of the firm with the tacit consent of the other partners of it. On 15.10.2007, he took a loan of Rs.1,05,000/- in cash from him on behalf of the firm for expansion of business of the firm. Against the payment of loan, he issued three cheques (for short 'the cheques') to him of various amounts. The details of each cheque is given in para-3 of the complaint. All the cheques were drawn by him on the UCO Bank, Main Branch Jabalpur with which the firm maintains the account. On 08.07.2008, he deposited the cheques for encashment in his bank account which he has with the Allahabad Bank, Branch Fawara Chowk, Jabalpur. On 09.07.2008, his bank informed him that the drawer bank had dishonored the cheques on account of insufficient funds in the bank account of the respondent No.1. Thereupon, he gave a demand notice to Azad Kumar Jain in terms of Section 138 of the Act, by registered AD and through Madhur Courier. He refused to receive notice sent by registered AD. However, he received the notice sent through the said courier. Despite the receipt of notice, he did not pay the amount of the cheques. Hence, this complaint.
(2.2) Vide order dated 23.09.2008, the complaint is registered under Section 138 of the Act. On 27.07.2011, the learned JMFC framed the charge against the respondent No.1 Sanad Kumar Jain under Section 138 of the Act. Feeling aggrieved thereby, the respondent No.1 Sanad Kumar Jain filed the revision which was decided by the impugned order quashing the said charge.
(2.3) From a perusal of the impugned order, it appears that respondent No.1 Sanad Kumar Jain has filed the revision on the ground that before the filing of the complaint in the trial court, the applicant gave the demand notice to Azad Kumar Jain in terms of Section 138 of the Act. Thereafter, the applicant filed the complaint against the firm through Azad Kumar Jain. After the registration of the complaint, the trial court issued summons to Azad Kumar Jain for his appearance in the case. The trial court received the summons unserved with a postal endorsement that there is no partner of the firm by the name of Azad Kumar Jain. Thereafter, the trial court issued a bailable warrant of arrest against Azad Kumar Jain and sent it to Police Station, Kotwali, Jabalpur with a direction to serve it upon him. The SHO of the said police station informed the trial court vide letter dated 01.12.2009 that a person by the name of Azad Kumar Jain is not found to be the partner of the firm. Thereafter, the applicant filed an amendment application dated 03.08.2010 in the trial court for the substitution of name of Sanad Kumar Jain in place of Azad Kumar Jain in the array of cause title of the complaint. Vide the order dated 03.08.2010, the trial court allowed the application. Later, the cause title of the complaint was amended by the applicant and in place
