ORDER
Arun Kumar Goel, J.
1. This revision petition is directed against the order dated 8-9-96 passed by Sessions Judge, Jammu, upholding the order of rejection of application for dropping of proceedings initiated against the petitioner at the instance of the respondent under Section 138 of the Negotiable Instruments Act, 1881, as amended upto date hereinafter referred to as the Act.
2. Before examining the respective submissions urged by learned counsel for the parties appearing in this case, brief facts giving rise to this revision need to be noticed.
3. A complaint under Section 138 of the Act was filed by M/s. Gandotra Trading and Leasing Corporation through its partner Harbans Lal against Inderjit Kour (petitioner) and M/s. Inderjit Industries who were both arrayed as accused Nos. 1 and 2 respectively. It may be appropriate to mention here that, the petitioner is the proprietor of M/s. Inderjit Industries. As per case of the respondent, petitioner approached it for the grant of loan to the tune of Rs. 76,500/- which was granted to her. For discharging the liability of this amount, a cheque in the sum of Rs. 76,500/- was issued by the petitioner to the respondent drawn on Punjab National Bank, Purani Mandi, Branch, Jammu. This cheque was sent for collection by the respondent through its banker, however, it was returned, back dishonoured with the memo that insufficient fund. This memo is dated 16-6-95 and intimation received by the respondent as per allegations made in the complaint was on 20-6-95 from its banker. Demand is stated to have been made by Registered A/D notice despatched on 26-6-95. Because neither the A/D nor the undelivered registered envelope of the notice was received back till 25-7-1995, as such on the assumption that: notice had been received by the respondent and on his having failed to liquidate the aforesaid amount, complaint has been filed. Record of the trial Court shows that complaint was presented before the trial Court on 12-8-1995. On receipt of notice in the complaint, petitioner preferred an application for dropping the proceedings before the Court below but the application did not find favour and the trial court vide its judgment dated 30-3-1996 dismissed the said application. Petitioner being dissatisfied with the said order, preferred a revision petition in the Court of Sessions Judge, Jammu but without any success as it met the same fate and finally the order of the trial Court dismissing the application for dropping the proceedings, filed by the petitioner was upheld hence this revision petition by the petitioner.
4. Learned counsel appearing for the petitioner submitted that even if what is alleged in the complaint as well as preliminary evidence as examined on behalf of the petitioner, is accepted on its face value without being conceded, even then no case is made out, as requirements of Section 138 of the Act regarding the proof of firstly having issued the notice and thereafter within 15 days of the receipt of such notice, failure on the part of party concerned, petitioner in the present case is not made out and thus he urged that both the Courts below have fallen into error while dismissing the application of his client. In this behalf statement of the respondent made during the course of preliminary evidence was also pressed into service and lastly it was urged that provision of law where under shelter had been sought by the complainant being stringent in nature, strict compliance therewith needs to be insisted upon. In such circumstances, benefit of any infraction of law will go to the petitioner as per Mr. Singh and thus he urged for allowing the revision petition and consequent dismissal of the complaint filed by the respondent. On the other hand, Mr. M.L. Gupta, learned counsel for the respondent forcefully contended that the factum of date of service was to be proved by his client during the course of trial and further there is no illegality muchless any impropriety committed by the Courts below while declining the application filed by the petitioner. It was submitted on behalf of the respondent that process has been rightly issued by the Court below against the petitioner and this Court in exercise of its revisional jurisdiction may not order quashing of proceedings as was prayed for by the petitioner in the Courts below. It has been held concurrently by both the Courts below that the proceedings pending in trial Court did not require droping at the instance of the petitioner, therefore, Mr. Gupta urged that the prayer made by the petitioner deserves to be rejected.
5. In order to properly understand the submissions of Mr. Gupta, Section 138 of the Negotiable Instruments Act needs to be examined which is to the following effect:-
138. Dishonour of cheque of insufficiency etc., of funds in the account – Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both :
Provided that nothing contained in this section shall apply unless:-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in the due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within 15 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid, and
(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 15 days of the receipt of the said notice.
Explanation:-For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.
6. Reading of the aforesaid section makes it clear that for whatsoever reasons a cheque is dishonoured, then the grounds on which it is dishonoured, are totally irrelevant, as relevant material fact to be seen is that payment is not forthcoming. The only requirement of Section 138 of the Act is that after a cheque is dishonoured, notice of such dishonour is to be given in writing to the drawer of the cheque within 15 days of the receipt of notification from the bank that the cheque has been returned unpaid. Thereafter 15 days’ time is granted by law to the drawer of the cheque (petitioner) in the present case to make payment within next 15 days of the receipt of such notice. In case drawer of the cheque fails to make the payment, within 15 days of the receipt of the notice of demand, then the drawee/holder in due course of the cheque is entitled to maintain the complaint under Section 138 as offence is complete. Merely because the cheque has been dishonoured by itself is no ground to enable the drawee/holder of the cheque to maintain the complaint. After the date of receipt of intimation of such dishonour from the bank, the drawee has to take two more steps, within 15 days of such receipt to give notice in writing intimating the drawer about dishonour and within 15 days of the receipt of such demand, drawer if fails to make the payment there will be complete cause of action to maintain the complaint within the ambit of law.
7. In this behalf, the objects and reasons for amendment of Negotiable Instruments Act thereby enactingSections 138 to 142 need to be briefly referred to. It is a matter of common knowledge that in the present day business world cheque is accepted almost like the cash and in order to avoid harassment to drawer for bona fide mistake while issuing the cheque which later on is dishonoured is not encashed, legislature has granted another opportunity to such drawer within 15 days of the receipt of notice to rectify the mistake. Persons who issued cheques, are required to ensure that those are honoured and the tendency of the persons who intentionally do not want to get the cheque(s) issued by him honoured is intended to be curbed with the enactment of the aforesaid provision of law.
8. On the other hand, penal provision also intends to bring credibility in the business transaction based on negotiable instruments like cheque, so that a person dealing by means of such negotiable instruments deals with confidence. It hardly needs to be emphasised that drawer of cheque is expected to issue it with full sense of responsibility and if mistake is committed by the drawer thereof or at the time of presentment of the cheque for any reasons whatsoever, there is not enough money in his bank or he is unable to arrange for money for encashment of the cheque, issued by him, still law gives him protection by affording another opportunity to do the needful i.e. in accordance with Clause (c) of the proviso of Section 138 of the Act (supra).
9. In the present case, there is no mention by the respondent as to what is the date of service of notice of demand issued by him after receipt of intimation of the dishonour of the cheque in question. Paragraph 7 of the complaint is material in this behalf which is to the following effect:-
7. That, the notice was despatched to the accused through Registered A/D on 26-6-1995 and since A/D was not received nor the registered envelope has been received till 25th July, 1995, as such, the notice has been received by the accused and has failed to liquidate the aforesaid amount.
A copy of the notice along with copy of the cheque and memo are attached herewith for ready reference.
10. When a reference is made to the preliminary evidence recorded during the course of proceedings before the trial Court, there also it is not stated as to on what date this notice of demand was received by the respondent. Date of receipt of notice assumes significance because it is after the expiry of 15 days of this date that the complaint can be maintained by the complainant (respondent in the present case). It hardly further needs to be emphasised that it is for the complainant to prima facie make out a case so as to enable the Court to examine the complaint, preliminary evidence examined in support thereof that it is clear-cut case of invoking the penal provision of like Section 138 of the Act. Unless all the requirements are prima facie made out, there arises no question of issuing process for summoning an accused like the petitioner.
11. Faced with the aforesaid snag in the case, learned counsel for the respondent submitted that since he had named the Postmaster, Mubarak Mandi Post Office, Jammu as one of the witnesses, he would prove the date of service of notice during the course of evidence that going to be examined by him during the trial of the case. This argument is totally fallacious and without any merit besides having been raised simply to be rejected. This aspect of the case has been completely ignored by both the Courts below. In this context, it may be appropriate to clarify that even after referring to the preliminary evidence examined before the trial Courts below as well as after going through the complaint, learned counsel for the respondent was not in a position to show as to what was the date of receipt of notice of demand upon the petitioner. Though great emphasis was laid that notice was issued on 26-6-1995 thereafter 30 days expired on 25-7-1995 as such notice having been received by the petitioner and on her failure to liquidate the amount, complaint has been filed within the statutory period. This plea also does not hold good even if it be accepted for the sake of argument. Complaint was presented before the Magistrate below on 12-8-1995,30 days as was claimed by the respondent expired on 25-7-1995 even then the complaint was presented on 18th day on its own showing.
12. In order to satisfy the definition of complaint within the meaning as contained in Section 2(d), Cr.P.C. and it is for the complainant to show that the offence has been committed in accordance with law and in order to constitute an offence, there must be some act or conscious omission which is made penal by any provision under law. In AIR 1960 SC 866 : (1960 Cri LJ 1239), R.P. Kapoor v. State of Punjab, the Hon’ble Supreme Court held that whether the allegations in the First Information Report or the complaint even if they are taken on their face value and accepted in their entirety do not constitute an offence alleged, in such cases, no question of appreciating evidence arises. It is a matter of merely looking on the First Information Report to decide whether the offence alleged is disclosed or not. In AIR 1992 SC 604 : (1992 Cri LJ 527), State of Haryana v. Choudhary Bhajan Lal, broad principles were laid down by the Hon’ ble Supreme Court for quashing criminal proceedings, which are to the following effect:-
108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we gives the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guideline or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted legations made in the F.I.R. or complaint and; the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR, or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
13. When the complaint filed in the present case as well as preliminary evidence that was examined during the course of the proceedings before summoning order was passed both are read together it is clear that the case in hand is fairly and squarely covers by Clauses 2 and 3 as enumerated above in the case of State of Haryana v. Choudhary Bhajan La) (1992 Cri LJ 527) (SC) as well as in the case of R.P. Kapoor v. State of Punjab (1960 Cri LJ 1239) (SC). In addition to this in case of Parmod Kumar v, Subodh Kumar (1997) 1 Shirnla LJ 336), identical view was taken.
14. Another circumstance that needs to be examined is that the stringent is the provision of law, strict compliance therewith has to be ensured. As already discussed, there is no pleading muchless proof in preliminary evidence regarding the date of service of notice, the application filed by the petitioner for dropping the proceedings could not have been dismissed.
15. When the facts detailed in the present case are examined on the touchstone of the requirements of Section 138 of the Act, Section 2(d) of the Code of Criminal Procedure as well as on the decisions of the Hon’blc Supreme Court referred to hereinabove, it is clear that it lacks the necessary facts having been pleaded as also in preliminary evidence examination on behalf of the respondent. In the face of this position, this Court is of the view that trial Court had fallen into error by overlooking the provision of the law and thus having ordered summoning of She petitioner. Not only this, but it further committed patent illegality as also erred in dismissing the application filed by the respondent for dropping the proceedings against her and it was repeated by the revisional Court below by dismissing the revision filed by the petitioner.
16. As consequence of the aforesaid discussion, there is merit in this revision petition and accordingly the same is allowed. As a result thereof, proceedings initiated against the petitioner in Case No. 30/95 Criminal, titled as Gandotra Trading and Leasing Corporation v. lnderjeet Kour and Anr., under Section 138 of the Negotiable Instruments Act, are hereby quashed and are ordered to be dropped by allowing the application filed by the petitioner for dropping the proceedings, which stands allowed.