In the copy of the plaint filed in the typed set, in paragraph 1, it is stated that towards the discharge of the debt due from the defendant to the plaintiff, which arose out of a commercial transaction, the defendant gave cheque ..." All that section 138 of the Act requires is that "where any cheque drawn by a person on an account maintained by him with 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 liability ..... " So, the requirement is that cheque must be issued for discharge in whole or in part of any debt or other liability. The allegations made in the complaint do satisfy that requirement. It does not matter as to whether the debt arose out of a commercial transaction or otherwise.
2. The respondent has filed a private complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act (hereinafter I shall refer to it as "the Act"). The allegations in it are briefly as follows :
Towards discharge of a debt due to the complainant from the accused, the accused gave a cheque dated April 10, 1990, to the complainant for Rs. 14,500. The complainant presented the cheque for encashment in the bank on September 24, 1990. It was returned with the endorsement "refer to drawer". Thereafter, the complainant issued a notice dated September 26, 1990, through his lawyer demanding the accused to pay the amount due under the said cheque. The accused had received the notice on September 27, 1990. The accused neither made any payment nor sent any reply. The accused has committed an offence punishable under section 138 of the Act. Hence, the complaint.
Neelambika, learned counsel appearing for the petitioner, would submit that -
1. It is not stated in the complaint as to what kind of debt for which the cheque was issued,
2. In the statutory notice sent by the complainant he had demanded payment within ten clear days and no 15 days time was given.
Regarding the first submission, the relevant allegations are in para 1 of the complaint. It reads as follows :
"Towards discharge of a debt due to the complainant from the accused, the accused gave a cheque dated April 10, 1990, to the complainant for a sum of Rs. 14,500."
3. In the copy of the plaint filed in the typed set, in paragraph 1, it is stated that towards the discharge of the debt due from the defendant to the plaintiff, which arose out of a commercial transaction, the defendant gave cheque ..." All that section 138 of the Act requires is that "where any cheque drawn by a person on an account maintained by him with 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 liability ..... " So, the requirement is that cheque must be issued for discharge in whole or in part of any debt or other liability. The allegations made in the complaint do satisfy that requirement. It does not matter as to whether the debt arose out of a commercial transaction or otherwise. So, submission No. 1 fails.
4. Regarding the second submission, I have to refer to the relevant allegations made in the complaint. In paragraph 4 of the complaint, it is stated that the complainant issued a notice dated September 26, 1990. In paragraphs of the complaint, it is stated that the accused received notice on September 27, 1990. This complaint was laid on November 6, 1990. So, it was laid after the expiry of 15 days from the date of receipt to the notice by the accused and before expiry of one month thereafter. Thus, the requirements of section 138 of the Act are complied with. Clause (b) of the proviso to section 138 of the Act reads as follows :
"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 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."
5. Clause (c) of the proviso to section 138 of the Act reads as follows :
"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 fifteen days of the receipt of the said notice."
6. The sine qua non for the offence is that the payment was not made within 15 days of the receipt of the notice. That requirement is satisfied in this case. It is not at all relevant as the whether 7 or 10 days' time is given in the notice given to the accused under section 138 of the Act. The relevant thing to be seen is whether 15 days' time had expired after the receipt of notice by the accused by the time the complaint was filed. That provision is satisfied in this case. Hence, I am unable to accept the submission made by learned counsel for the petitioner regarding point No. 2.
7. Since none of the submissions made by learned counsel for the petitioner finds acceptance with me, this petition shall stand dismissed.
Madras High Court
Dickson Prem Raj vs R. Manoharan on 30 November, 1993
Equivalent citations: 1995 83 CompCas 245 Mad
1. The accused in C.C. No. 298 of 1990, on the file of the Judicial Magistrate No. I, Kuzhithurai, has filed this petition under section 482 of the Criminal Procedure Code, 1973 praying to call for the records in the aforesaid case and quash the same.2. The respondent has filed a private complaint against the petitioner for an offence under section 138 of the Negotiable Instruments Act (hereinafter I shall refer to it as "the Act"). The allegations in it are briefly as follows :
Towards discharge of a debt due to the complainant from the accused, the accused gave a cheque dated April 10, 1990, to the complainant for Rs. 14,500. The complainant presented the cheque for encashment in the bank on September 24, 1990. It was returned with the endorsement "refer to drawer". Thereafter, the complainant issued a notice dated September 26, 1990, through his lawyer demanding the accused to pay the amount due under the said cheque. The accused had received the notice on September 27, 1990. The accused neither made any payment nor sent any reply. The accused has committed an offence punishable under section 138 of the Act. Hence, the complaint.
Neelambika, learned counsel appearing for the petitioner, would submit that -
1. It is not stated in the complaint as to what kind of debt for which the cheque was issued,
2. In the statutory notice sent by the complainant he had demanded payment within ten clear days and no 15 days time was given.
Regarding the first submission, the relevant allegations are in para 1 of the complaint. It reads as follows :
"Towards discharge of a debt due to the complainant from the accused, the accused gave a cheque dated April 10, 1990, to the complainant for a sum of Rs. 14,500."
3. In the copy of the plaint filed in the typed set, in paragraph 1, it is stated that towards the discharge of the debt due from the defendant to the plaintiff, which arose out of a commercial transaction, the defendant gave cheque ..." All that section 138 of the Act requires is that "where any cheque drawn by a person on an account maintained by him with 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 liability ..... " So, the requirement is that cheque must be issued for discharge in whole or in part of any debt or other liability. The allegations made in the complaint do satisfy that requirement. It does not matter as to whether the debt arose out of a commercial transaction or otherwise. So, submission No. 1 fails.
4. Regarding the second submission, I have to refer to the relevant allegations made in the complaint. In paragraph 4 of the complaint, it is stated that the complainant issued a notice dated September 26, 1990. In paragraphs of the complaint, it is stated that the accused received notice on September 27, 1990. This complaint was laid on November 6, 1990. So, it was laid after the expiry of 15 days from the date of receipt to the notice by the accused and before expiry of one month thereafter. Thus, the requirements of section 138 of the Act are complied with. Clause (b) of the proviso to section 138 of the Act reads as follows :
"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 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."
5. Clause (c) of the proviso to section 138 of the Act reads as follows :
"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 fifteen days of the receipt of the said notice."
6. The sine qua non for the offence is that the payment was not made within 15 days of the receipt of the notice. That requirement is satisfied in this case. It is not at all relevant as the whether 7 or 10 days' time is given in the notice given to the accused under section 138 of the Act. The relevant thing to be seen is whether 15 days' time had expired after the receipt of notice by the accused by the time the complaint was filed. That provision is satisfied in this case. Hence, I am unable to accept the submission made by learned counsel for the petitioner regarding point No. 2.
7. Since none of the submissions made by learned counsel for the petitioner finds acceptance with me, this petition shall stand dismissed.
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