JUDGMENT
J.D. Kapoor, J.
Crl.A. Nos. 421 and 288 of 2002.
1. Both the petitions shall stand decided through
this common order as these petitions arise from the same
order which is dated 18.12.2001.
2. Petitioners are the directors of M/s Padmini
Technologies Ltd. Through this petition they have
challenged the impugned order dated 18.12.2001 whereby
they were summoned as accused for having committed the
offence punishable under Section 138 Negotiable
Instruments Act (for short “Act”).
3. Admittedly the petitioner company M/s Polymers
Technologies Ltd. issued two cheques bearing Nos. 247869
dated 25.06.2001 for Rs. 60 lakhs and 247870 dated
27.06.2001 for Rs. 65 Lakhs drawn on Vijaya Bank, Ansari
Road, Daryaganj, Delhi in favor of the respondent for
valuable consideration and in discharge of their liability
legally recoverable from them. On presentation the said
cheques were dishonoured. The factum of dishonoured
cheques was brought to the notice of the petitioner vide
letter dated 5.7.2001 sent on the letter head of the
respondent company by its Chief General Manager. In the
said letter it was mentioned that the Trust was proposing
to initiate proceedings under Section 138 of the Act if
the company would fail to pay the amount due to it.
Pursuant to this communication and allegedly on the
representation of the appellants the cheques were
presented on as many as three occasions but on each
occasion these were received dishonoured.
4. The respondents-company served a legal notice
dated 17.11.2001 upon the petitioners through Mr. P.
Nath & Company, Advocates, Supreme Court and High Courts
in terms of Section 138 of the Act calling upon the
petitioners to pay Rs. 1 Crore 25 lakhs together with
interest @ 18% plus an amount of Rs. 21,000/- towards
cost of the notice within 15 days from the receipt thereof
through demand draft/pay order failing which they shall be
compelled to file a criminal complaint. there was no
response to the said notice nor was the payment made
within 15 days. As a consequence the respondents filed a
complaint under Section 138 of the Act resulting in the
summoning order.
5. Main premise of challenge of the impugned order
is that the complaint is time barred and is not
maintainable as the first notice as contemplated under
Section 138 of the Act was served upon the company on
5.7.2001 and the complaint ought to have been filed by
complainant under Section 138 of the Act within 15 days
and since the complaint was filed in December, the same is
hopelessly barred by time. Apart from this, Mr. Sandip
Sethi, learned counsel for the petitioners has referred to
a notice dated 24.10.2001 which was served upon the
petitioners as Directors of M/s Padmini Polymers Ltd.
whereas the last notice dated 17.11.2001 was served upon
them as directors of M/s Padmini Technologies Ltd. This
confusion has arisen because the original name of the
company M/s Padmini Polymers Ltd. was changed to M/s
Padmini Technologies Ltd.
6. So far as the letter dated 5.7.2001 which is
being used as sheet anchor by the petitioners is concerned
it cannot by any stretch of imagination be termed as
notice served upon the respondents as contemplated under
Section 138 of the Act. Simply because a reference was
given for initiating proceedings under Section 138 of the
Act does not give a colour of notice as contemplated under
Section 138 of the Act. Through this letter, only the
fact that the cheque have been dishonoured was brought to
the notice of the petitioners calling upon them to make
the payment immediately of the outstanding dues. It was
not a legal notice whereby the petitioners were called
upon to make the payment within 15 days of the receipt of
said notice as contemplated under Sub-clause (c) of
Section 138 of the Act.
7. The notice as contemplated under Section 138 of
the Act served upon the respondents is the one which is
dated 17.11.2001 which was given through an Advocate and
through which the petitioners were called upon to pay the
outstanding dues with interest as well as cost of the
notice within 15 days from the receipt thereof. The
contention at this stage that during the period from
5.7.2001 to 17.11.2001 some talks took place between the
parties and the assurance was given that they would make
payment appears to be prima facie worthy of credence as
the cheque were presented on as many as three occasions.
Even otherwise the cheques can be presented as many times
as the respondents deem proper but within the period of
its validity or six months which is earlier. In
Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998 (3)
Crimes 217 (SC) it was observed that without taking
pre-emptory action in exercise of his such right under
Clause (b) of Section 138, a party can go on presenting the
cheque so as to enable him to exercise such right at any
point of time during the validity of the cheque. But,
once he gives a notice under Clause (b) of Section 138 he
forfeits such right for in case of failure of the drawer
to pay the money within the stipulated time he would be
liable for the offence and the cause of action for filing
the complaint will arise.
8. Needless to say, the period of one month for
filing the complaint will be reckoned from the day
immediately following the day on which the period of
fifteen days from the date of the receipt of the notice by
the drawer expires. In view of this provision the Supreme
Court held that the cheque can be presented within six
months of its issue or within the period of validity or
earlier for any number of times. It is only when a notice
calling upon the drawer of the cheque to make the payment
of the amount of the cheque within 15 days of the receipt
thereof is issued pursuant to the last presentation of the
cheque which can be termed as a notice under Section 138
of the Act.
9. Unless an until the intention is clear on the
part of the person giving notice that the payment by the
drawer of the cheque should be made within 15 days of
receipt thereof any communication between the parties
insisting for making the payment cannot be termed as a
notice under Section 138 of the Act. Otherwise the
purpose of presenting the cheque time and again during the
period of validity would have no meaning. The period of
limitation to file the complaint stars running from the
last notice which is given strictly in terms of Section
138 wherein the limit of 15 days for making the payment
from the receipt of notice is specifically mentioned or
referred to.
10. Thus it is only when a notice under Section 138
is served and the aggrieved party fails to initiate the
proceedings within time that it forfeits the right to
proceed subsequently and thereafter presentation of the
cheques is not permissible nor is the dishonouring of the
cheque of any relevance.
11. Thus on prima facie view of the matter and the
facts of the case coupled with the notice dated 17.11.2001
served upon the company on whose behalf the cheque were
issued. I perceive no reason to interfere with the
impugned order. The petition has no merit and is hereby
dismissed.