JUDGMENT
Y.P. Nargotra, J.
1. The respondent filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act, before the learned Sub Judge, Judicial Magistrate 1st Class, Jammu. Learned judicial magistrate, took cognizance of the complaint and issued the process to the accused petitioner herein. The accused petitioner filed an application before the learned Magistrate for dropping of the proceedings initiated against him. The learned Magistrate by his order dated 17-09-2003 dismissed his application. Aggrieved by the dismissal of the application, the petitioner accused filed revision petition before the learned 2nd Additional Sessions Judge, Jammu. The learned Sessions Judge, vide his order dated 31-1-2004 dismissed the revision petition, hence the petitioner has filed this petition under Section 561-A Cr.P.C. for seeking setting aside of the orders passed by the learned Magistrate as well as the Regional Court.
2. The case of the petitioner is that in the complaint filed by the respondent, the respondent has not disclosed the date on which the demand notice was served upon the accused petitioner. Since the cause of action for filing the complaint could arise to the complainant if the amount of the cheque dishonoured was not paid within 15 days of the receipt of the notice, the complaint in the absence of the disclosure of date of service of the notice is not maintainable.
3. Mr. Wazir, learned Counsel for the petitioner submits that it is imperative upon the complainant to mention the date of service of the notice upon the accused for maintaining the complaint under Section 138 of the Negotiable Instruments Act. He argues that if the date is not mentioned then no cause of action accrues to the complainant to file the complaint. According to Mr. Wazir as the date of service of the notice has not been mentioned, therefore, the complaint as well order orders passed thereon deserve to be quashed.
In support of his contention, he has relied upon judgement of this Court rendered in Sanji Ram v. Nand Kishore Mehta, reported in 2003(2) JKJ, 794.
Section 142 of the Negotiable Instruments Act provides:
“142. Cognizance of offences. — Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).
(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under Clause(c) of the proviso to Section 138.”
Clause (c) of proviso to Section 138 reads as under:
“(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice”.
Thus, Section 142 creates a bar against taking cognizance upon the complaint for commission of offence under Section 138A of the Act unless the complaint is made within one month of the date on which the cause of action arises i.e. the drawer of the cheque fails to make payment of the cheque to the payee complainant or the holder in due course of the cheque within 15 days of service of demand notice issued after dishonour of the cheque. The moment the cheque is dishonoured, the holder of the cheque is required under law to issue notice of demand within the prescribed period under Section 138A of the Negotiable Instrument Act.
4. Now, the question arises; is it necessary for the complainant to mention the actual date of service of such notice upon the accused in the complaint for maintaining the complaint validly. In Sanji Ram’s case supra, this Court held:
“8. The legal position is brought to the fore by combined reading of Sections 138(c) and 142(b), which clearly envisages that it is the date of the actual service of the complainant’s demand notice on the accused (drawer of the cheque), which gives to cause of action under Clause (c) of the proviso to Section 138 for the former to lodge the complaint under Section 138 of the Act against the latter and that this cause of action arises on the date when the said notice has been shown to be duly served on the accused and that if within 15 days of the receipt of the notice if the drawer accused pays up the dishonoured cheque amount to the payee complainant or the holder in due course of the cheque, the cause of action for the said purpose would cease to exist. The learned Magistrate get the jurisdiction to entertain the complaint under Section 142 and take cognizance of the offence under Section 138 of the Act only when a valid cause of action therefore exits.
9. The crucial point that was required to be considered by the Magistrate in the instant case was whether the complaint had placed sufficient material on record disclosing the actual date of service of demand notice on the accused so as to make out whether the cause of action for the former had arisen to present the complaint against the latter. Adverting to the record of the file, neither complaint nor the preliminary statement of the complainant disclosed the actual date of receipt of the notice of the demand for payment of the dishonoured cheque amount by the accused-drawer of the cheque served by the complainant. The complaint mentions only that a notice dated 4.5.2000, whereby the accused was intimated regarding the dishonoring of the cheque amount of Rs. 20.000 alongwith interest @ 24%. It, therefore, makes it abundantly clear that the complaint does not recite as to when the notice required under Clause (c), was dispatched by the complainant and on which date it was received by the accused. Even the preliminary statement of the complainant does not reveal the date of dispatch of the notice through registered AD and also on which the said notice was received by the accused-respondent. The complainant also does not recite that the notice was served by registered AD and on which date it was issued. In nutshell by referring to the complaint under Section 138 of the Act, there is nothing found to suggest as to when the notice was issued by the complainant and on which date it was received by the accused The cause of action has to accrue to the complainant to file a complaint for the criminal prosecution of the accused only when the accused (drawer of the cheque) fails to make the payment of the cheque amount to the payee within 15 days of the receipt of the notice. It is only thereafter a cause of action accrues to the complainant to lodge criminal prosecution within the statutory period provided under Section 142(b) of the Act.”
5. On the aforesaid reasoning, the order of the trial court for dropping the proceedings was up held. Dropping of the complaint was found justified by this Court for the reason that the accused had not mentioned the exact date of issue of notice or the date of service of the notice. IN the present case, the complainant has mentioned the date of issuance of the notice to the accused, only therefore the authority being relied upon is not applicable to the present case.
In 2004 AIR, SCW 6344, V. Raja Kumari v. P. Subbarana Naidu and Anr., the appellant had called in question legality of the judgement rendered by the Single Judge of the Andhra Pradesh High Court, holding that the question whether the notice as required under Section 138 of the Negotiable Instruments Act has been served, has to be decided during the trial and the complaint was not to be dismissed on the thresh hold, on the plea that there was no proper service of notice. Their Lordships, after referring to various judgments of Apex Court, came to the view that the High Court was justified in its view and no interference was called for. It has been observed by the Their Lordships, after referring to Clause b to (c) of proviso to Section 138:
“8. On the part of the payee he has to make a demand by “giving a notice” in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such ‘giving’, the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days ‘of the receipt’ of the said notice. It is, therefore, clear that ‘giving notice’ in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address.
9. In Black’s Law Dictionary ‘giving of notice’ is distinguished from ‘receiving of the notice’ (vide p.621): “A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it.” A person ‘receives’ a notice when it is duly delivered to him or at the place of his business.
10. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that the Court should not adopt an interpretation which helps a dishonest evader, and clips and honest payee as that would defeat the very legislative measure.
11. In Maxwell’s Interpretation of Statutes, the learned author has emphasized that ‘provisions relating to giving of notice often receive liberal interpretation’ (vide p.99 of the 12th Edn.). The context envisaged in Section 138 of the ‘act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Clause (b) of the proviso to Section 138 of the Act show that the payee has the statutory obligation to ‘make a demand’ by giving notice. The thrust in the clause is on the need to ‘make a demand’. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and next depends on what the sendee does.”
6. Therefore, what complainant has to say in the complaint is that he has sent the notice within period prescribed after dishonouring of the cheque. Once it is shown then it is for the accused to say that he had not received that notice for escaping the penal consequences under Section 138 of the Act. This can be done by accused during the trial, therefore, the complaint cannot be dismissed on the threshold, as on the ground that there was no proper service of notice upon him. Learned trial court was, therefore, justified in rejecting the prayer for dropping of the proceedings against the petitioner and so also learned Sessions Judge in dismissing the revision petition of the petitioner. There is no merit in this petition, it is, as such, dismissed.