D.K. Goel vs Dr. (Mrs.) Kamal Sujit
2001 Latest Caselaw 562 Bom

JUDGMENT

K.S. Gupta, J.

1. Petitioner has filed this petition under Section 482, Cr.P.C. with the prayer that complaint No. 1038/98 pending against him before a Metropolitan Magistrate be quashed and order dated 4th June, 2001 passed in Crl. R. No. 6/2001 by an Addl. Sessions Judge be set aside.

2. Copy of criminal complaint which is sought to be quashed, is placed at pages 69 to 74 on the file. In this complaint filed under Section 138 of the Negotiable Instruments Act (for short the' Act') by the respondent herein, it is, inter alia, alleged that the petitioner herein towards part payment of his liability issued cheque No. 230284 dated 16th December, 1998 for an amount of Rs. 2.5 lacs drawn on Canara Bank, Hauz Khas, New Delhi. On presentation of the cheque by the respondent through Punjab National Bank, Nauroji Nagar, New Delhi on 17th December, 1997 for realisation of money, same was returned back by the said branch of Canara Bank on 18th December, 1997 with the remarks 'Funds Insufficient'. Information regarding dishonour of cheque was received on 19th December, 1997 and immediately thereafter the respondent intimated the petitioner about the same. Whereupon the petitioner apologized and requested the respondent to represent the said cheque on 24th December, 1997 so that he may in the meantime arrange for sufficient funds in this Account No. 1901 with the said branch of Canara Bank. It is further alleged that on representation of the cheque on 24th December, 1997, same was dishonoured again for the reason--'Payment Stopped by the Drawer' and intimation regarding dishonour was received by the respondent on 29th December, 1997. Thereafter the respondent got a legal notice under Section 138 of the Act served on the petitioner calling upon him to make payment of said cheque within 15 days from the receipt of that notice. Despite the expiry of statutory period of 15 days, no payment has been made by the petitioner. It seems that by the order dated 26th February, 2000 passed by the concerned M.M. the petitioner was summoned as an accused. Crl. R. No. 6/2001 filed against the order dated 26th February, 2000 by the petitioner was dismissed by the order dated 4th June, 2001 by an Addl. Sessions Judge.

3. Submission advanced by Sh. Sujan Singh, Advocate who I have heard on the point of admission, was that as per the own admissions made in the complaint by the respondent, the petitioner was intimated about first dishonour of cheque No. 230284 for Rs. 2.5 lacs on 19th December, 1997. Respondent cannot claim accrual of cause of action because of default in making payment of the amount of said cheque after receipt of respondent's notice dated 10th January, 1998 by the petitioner and, therefore, not only the order of Addl. Sessions Judge dated 4th June, 2001 in Crl. R. No. 6/2001 needs to be set aside but the complaint itself deserves to be quashed. Proviso to Section 138 of the Act lays down three conditions precedent to the applicability of that section and the conditions are--(i) The cheque should have been presented to the Bank within six months of its issue or within the period of its validity whichever is earlier, (ii) payee should have made a demand for payment by registered notice after the cheque is returned unpaid, and (iii) drawer should have failed to pay the amount within 15 days of the receipt of notice, (See : Sadanandan Bhadran v. Madhavan Sunil Kumar, . Intimation to the petitioner regarding dishonour of said cheque on 19th December, 1997 which presumably was verbal, cannot be treated as a demand within the meaning of proviso to Section 138 it being not in writing requiring the petitioner to pay amount of cheque within 15 days. In my view, the cause of action to the respondent to file complaint had accrued only on failure to make payment of the said cheque by the petitioner within 15 days of the receipt of aforesaid notice dated 10th January, 1998. Submission referred to above is thus repelled being without merit and the petition is dismissed as having no substance.