JUDGMENT
S. K. Gupta, J.
1. There is delay of 111 days in filing the revision.
After hearing learned counsel for the applicant and having regard to the cause shown in the application, I am satisfied that the delay in filing the revision was neither intentional nor deliberate but on account of the circumstances set out in the application. The application is allowed. Delay in filing the revision is condoned.
Registry is directed to register and number the revision.
Criminal Revision No. /2004.
2. On a complaint filed by the respondent, under Section 138 of the Negotiable Instruments Act, (hereinafter for short referred to as “the Act”) in alleging that the cheque issued by the petitioner for a sum of Rs. 25,000/-, in discharge of his debt liability, when presented before the Bank, stood dishonoured and despite making demand by giving a notice in writing by the drawee of the cheque within 15 days from the date of receipt of the information from the Bank that the ‘account closed’, the cheque amount was not paid. The learned Magistrate after recording preliminary evidence took cognizance and issued process against the accused and the accused, after appearing, filed an application seeking dropping of the proceedings on the ground that no notice was received, but the same stood dismissed by the Trial Court vide order dated 22/12/2003 and further affirmed in revision by the 2nd Additional Sessions Judge, Jammu vide order dated 29/04/2004.
3. The sole grievance of the petitioner is that the complaint under Section 138 of the Act cannot proceed unless a notice of demand is served on the drawer of the cheque under Section 138 proviso (b) & (c). It is apt to point that the object of issuing notice indicating the factum of dishonour of the cheque is to give an opportunity to the drawer to make the payment within fifteen days, so that it will not be necessary for the payee to initiate any criminal action, even though the Bank dishonoured the cheque. This is one of the indispensable factors to form the cause of action envisaged in Section 138 of the Negotiable Instruments Act, as contained in Clause (b) of the proviso to that section. It evidently involves the making of a demand by giving a notice in writing to the drawer of the cheque within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. If no such notice is given within fifteen days, no cause of action could have been created at all.
4. In the instant case, notice was sent by registered post and the registered A/D envelope attached with the main file, reveals that the postman visited the place of addressee at previous time and many dates noted down and endorsement N/D is made on the registered envelope. It is a case in which demand notice in writing has been given within the stipulated period, as envisaged under proviso (b) to Section 138 of the Negotiable Instruments Act.
5. The question as to whether it is a deemed service of notice or not can be gone into only when the evidence is let in by the parties during the course of the trial and not at the initial stage of issuing the process.
6. Further contention of the petitioner is that ‘account closed’, as is found in the memo of the Bank, does not amount to dishonour of the cheque within the ambit of Section 138 of the Act. It is pertinent to point out that the ‘account’ is stated to have been closed even prior to the issuance of the cheque itself indicates the intention of the accused. The petitioner-accused knew that he had no sufficient funds with the Bank and account has already been closed, but still he issued a cheque, which subsequently was dishonoured with the memo as “account closed”. The drawer of the cheque who closes his account with the Bank before the cheque reaches the Bank for presentation, is actually causing insufficiency of money “standing to the credit of that account” such closure of account is also a ground envisaged in Section 138 of the Act. The cheque was returned and reason given for dishonour as “account closed” and statutory notice giving fifteen days’ time to pay the amount, the prosecution launched cannot be quashed under Section 561-A Cr.P.C./revision.
7. In the above view of the matter, the orders passed by both the courts below neither suffer from any infirmity, legal or factual, nor have resulted into the abuse of the process of Court, so as to invoke the revisional/inherent jurisdiction.
8. In the result, the revision, possessing no merit, is hereby dismissed.