IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10/02/2003 CORAM THE HONOURABLE MR. JUSTICE A. PACKIARAJ Criminal Revision Petition No.610 OF 2000 M/s.Amarjothi Spinning Mills Ltd., By its Collection Officer, Mr.G.L.N.Pandian Pudusuripalayam, Nambiyur, Erode District ... Petitioner -Vs- M/s. B.R.B.Garments represented by its Prop.R.Balakrishnan 15,Kongu Nagar, 4th Street, Tirupur-7. ..... Respondent PRAYER: Revision filed against the judgment dated 4.4.2000 and made in Crl.M.P.No.268 of 2000 in CC No.10 of 2000 on the file of the Judicial Magistrate No.2, Gobichetipalayam. !For petitioner : Mr.N.Ishtaq Ahmed ^For Respondent : --- :O R D E R
This revision has been filed against the orders passed by the Judicial
Magistrate No.2, Gobichettipalayam in Crl.M.p.No.268 of 2000 in CC No.10 of
2000, discharging the accused, by dropping the proceedings against the
respondent herein who was accused of offence under Section 138 Negotiable
Instruments Act.
2.When the revision was admitted here, notice was issued to the
accused through this Court and the same appears to have been received by the
accused. However, he has not appeared either in person or through counsel.
The matter has been appearing in the list on several occasions and on none of
the hearings, there was any representation. The matter was last posted to
06.02.2003, on which day also there was no representation. Subsequently, when
the matter was called on today, i.e. 10.2.2003, today also there is no
representation. Hence, I am constrained to hear the petitioner, peruse the
records and pass orders.
3.A complaint had been given against the accused for offence under
section 138 and 142 Negotiable Instruments Act stating that the accused had
purchased Hosiery yarns on credit and as a consideration thereof had issued a
cheque for Rs.87,210/- vide his cheque dated 08.11.199 9. When the same was
presented in the Bank of Baroda, Nambiyur Branch Gobi Taluk, the same was
returned on 22.11.1999 on the ground of ‘ insufficiency of funds’. Hence
notice was issued to the accused on 06.1 2.1999 intimating about the dishonour
of the cheque. However the notice had not been served on the accused.
Meantime, the accused had also approached the complainant and requested him to
present the cheque again and assured that there is money in the Bank.
Believing the representation of the accused, the cheque was once again
presented in the bank and again it met the same fate. After complying with
all the formalities, the present complaint has been filed.
4.The learned Magistrate, after taking cognizance of the offence had
issued summons to the accused and on receipt of the same, the accused appeared
and filed a petition to drop the proceedings, relying on the judgment of the
Supreme Court that once a notice had been issued to the accused after the
cheque having been bounced and the cause of action arises on the lapse of the
15th day of the notice having been issued to the accused. In support of his
argument he relied on the decision of the Supreme Court made in Sadanandan
Bhadran Vs. Madhavan Sunil Kumar reported in 1998 Vol.2, MWN (Cr.) (SC) 286
wherein Their Lordships have stated that consequent upon the failure of the
drawer to pay the money within 15 days, envisaged under clause (c) of the
proviso of Section 138 of the Negotiable Instruments Act, the liability of the
drawer for being prosecuted for the offence arises, and the period of one
month for filing the complaint under Section 142 is to be reckoned
accordingly. In that case where the cheque had been subsequently presented
and the same having been dishonourned and further notice had been given and
the accused having received the same had not paid the money, prosecution was
launched and the Supreme Court has held that there cannot be two cause of
action for the same offence and had dropped the proceedings in so far as the
accused is concerned. However the facts are totally different in the present
case. But on the other hand, in the present case, the accused volunteered
before the complainant and requested him to present the cheque again and on
his assurance the cheque was presented which met the same fate.
5.The learned counsel for the petitioner would place reliance on the
decision of the Supreme Court in Dalmia Cements Versus Galaxy Traders and
Agencies Ltd., and others reported in 2001 (1) CTC 538 wherein their Lordships
have focussed the objective and the act initiated to achieve while so, they
have stated in paragraph 3 and 6 as follows:-
3. ……
The law relating to negotiable instrument is the law of commercial
world legislated to facilitate the activities in trade and commerce making
provision of giving sanctity to the instruments of credit which could be
deemed to be convertible into money and easily passable from one person to
another. In the absence of such instruments, including a cheque, the trade
and commerce activities in the present day are likely to be adversely affected
as it is impracticable for the trading community to carry on with it the bulk
of the currency in force. The negotiable instruments are in fact the
instruments of credit being convertible on account of legality of being
negotiated and are easily passable from one hand to another. To achieve the
objectives of the Act, the Legislature has, in its wisdom, thought it proper
to make such provisions in the Act for conferring such privileges to the
mercantile instruments contemplated under it and provide special penalties and
procedure in case the obligations under the instruments are not discharged.
The laws relating to the Act are, therefore, required to be interpreted in the
light of the objects intended to be achieved by it despite their being
deviations from the general law and the procedure provided for the redressal
of the grievances to the litigants. Efforts to defeat the objectives of law
by resorting to innovative measures and methods are required to be discouraged
lest it may affect the commercial and mercantile activities in a smooth and
healthy manner ultimately affecting the economy of the country.
6.To constitute an offence under section 138 of the Act the
complainant is obliged to prove its ingredients which include the receipt of
notice by the accused under Clause (B). It is to be kept in mind that it is
not the “giving” of the notice which makes the offence but it is the ‘receipt’
of the notice by the drawer which gives the cause of action to the complainant
to file the complaint within the statutory period. This court in K.Bhaskaran
Vs. Sankaran Vaidhyan Balan & Anr. 1999 (3) CTC 358 : JT 1999 (7) SC 558 :
1999 (7) SCC 510 considered the difference between ‘giving’ of a notice and
‘receipt’ of the notice and held:
“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.”
6.Therefore, the emphasis made by the Supreme Court is on the factum
of the receipt of the notice by the accused and in spite of the same, if he
had not paid the amount, the cause of action takes effect. But admittedly in
the present case, it has been averred that he has not received the notice. In
addition to this, even in his objection filed before the court for discharge,
he has not stated that he has not received notice and that terminates the
cause of action.
7.Hence, I am of the opinion that the decision referred to by the
learned Magistrate would not apply to the facts and circumstances of the case.
Consequently, I set aside the order of the learned Magistrate and direct him
to take the matter on file and issue summons to the accused and proceed
further with the matter. As the case relates to the year 1999, I direct the
Magistrate to give preference to this case and dispose of it as early as
possible. The revision petition is allowed.
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To
1.The Judicial Magistrate No.II, Gobichettipayalam
2.-do- Through the Chief Judicial Magistrate, Erode.