Ashok Hegde vs Jathin V.

Attawan on 27 January, 1997

Karnataka High Court

Ashok Hegde vs Jathin V. Attawan on 27 January, 1997
Equivalent citations: 1997 CriLJ 3691, 1997 (3) KarLJ 208
Bench: M Chinnappa
ORDER

1. This petition is filed under Section 482, Cr.P.C. to quash the proceedings pending against the
petitioner in C.C. No. 13178/90 (P.C. 71/89) on the file of the III Addl. Munsiff & JMFC., M'lore. D.
K.

2. The brief facts of the case are the respondent filed a complaint under Section 200 Cr.P.C. on the
allegation that the petr. issued a cheque in a sum of Rs. 83,894/- towards repayment of the amount
due to the respondent. The said cheque is dt. 31-7-1989. The respondent presented the cheque to the
bank but the same was dishonoured by the bank with an endorsement 'stopped payment'. Thereafter
on 13-9-1989 the respondent got issued a legal notice to the petitioner. The said legal notice was
returned unserved with a postal share that 'addgressee refused'. Hence, the complaint was filed on
27-9-1989 before the Court. The learned Magistrate after taking cognizance of the offence directed
to issue process. The said order is questioned in this case.

3. Heard the learned counsel for petr. Though notice was served on the respondent, he did not
choose to appear or appoint a counsel.

4. The only contention raised by the petitioner in this case is that the respondent has not given 15
days time to the petitioner as contemplated under Section 138(b) of the Negotiable Instruments Act
(for short 'the Act'). According to Section 138(b) of the Act, the payee or the holder in 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 receipt of the information
by him from the bank regarding the return of the cheque as unpaid; and according to Section 138(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. From this it is clear that 15 days time has to be given as specified above.

5. It is no doubt that he has complied with the requirement of Section 138(b) of the Act by sending a
notice to the petitioner and the notice also is deemed to have been served on the petitioner as he
refused to receive the notice. The question is whether he has complied with the requirement of
Section 138(c) of the Act. The respondent ought to have given 15 clear days notice. In this case he
has issued notice on 13-9-1989 and filed the complaint on 27-9-1989. Thus, it is clear he had not
given 15 clear days notice. The complaint can be entertained by the Court only under Section 142 of
the Act which reads :

"COGNIZANCE OF OFFENCES. - Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974), -

Indian Kanoon - http://indiankanoon.org/doc/1824029/ 1

 Ashok Hegde vs Jathin V. Attawan on 27 January, 1997

(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;

(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class
shall try any offence punishable under Section 138."

The cause of action arises as contained in clause (b) of Section 142, only after the expiry of 15 days
from the date of receipt of the notice.

6. In this case, from on the perusal of the complaint itself, it is clear that he had issued the notice on
13-9-1989 and the complaint is filed on 27-9-1989. That on 31-7-89 the accused issued the cheque
bearing No. 235360 for Rupees 83, 894/- in favour of the complainant, drawn on Syndicate Bank,
Madhwanagar. The said cheque had been duly presented before the Corporation Bank. Pandeshwar,
Mangalore which was returned by the bank unpaid with an endorsement "payment stopped by the
drawer". The cheque in question has been issued by the accused towards the balance unpaid kist
amount. Immediately on receipt of the above information, the registered notice dt. 13-9-1989 was
sent to the accused, but that has been received back on 21-9-1989 with an endorsement by the Postal
Department 'Addressee refused'. Hence, it is clear that the intention of the accused is to cheat and to
dupe the complainant and that he had no intention to pay the amount. Therefore, from the above it
is clear that he received the notice back on 21-9-1989. Even accepting that the petitioner refused the
notice on 20-9-1989, the respondent ought to have filed this complaint after the expiry of 15 days
from the date of receipt of the notice. The date of issuance of notice cannot be taken into account,
for the reasons stated above. Therefore, the cause of action had not arisen to file the complaint
against the petitioner and the complaint was premature. However, the learned Magistrate has not
taken into consideration this fact before passing the order directing issue of summons to the
petitioner. Under those circumstances, it is a case where this Court has to interfere and the entire
proceedings are liable to be quashed.

7. In the result, I proceed to pass the following :

ORDER The petition is allowed. The proceedings in C.C. No. 13178/90 (P.C. No. 71/89) pending on
the file of the III Addl. Munsiff & JMFC., Mangalore, D.K. are quashed.

8. Petition allowed.

Indian Kanoon - http://indiankanoon.org/doc/1824029/ 2