Karnataka High Court
Sri Satyanarayana Gowda vs V.B. Rangappa on 7 February, 1996
Equivalent citations: 1997 88 CompCas 433 a Kar, 1996 CriLJ 2264
1. This petition under Sec. 482 Cr.P.C. is directed against the order dt. 14-12-95 passed by the IX Addl. C.M.M., Bangalore, in C.C. No. 20530/95 rejecting the application filed u/S. 258 Cr.P.C. to stop further proceedings.
2. Briefly stated facts necessary for disposal of this petition are that the respt. filed a complaint against the petitioner under Section 200 Cr.P.C. on the allegation that a cheque for a sum of Rs. 35,800/- dt. 1-11-94 drawn on Karnataka State Co-op. Bank Ltd., Banashankari Branch, Bangalore, was issued in favour of the complainant by the accused. The said cheque was dishonored by the bank when presented with an endorsement by the bank 'insufficient funds', on 24-3-95. After issuing a notice as contemplated u/S. 138(b) of the Negotiable Instruments Act (for short 'the Act'), the complainant lodged a complaint to punish the accused under Sec. 138 of the Act. The learned Magistrate, after taking cognizance of the case & recording the sworn statement, being satisfied with the prima facie case, ordered to issue summons to the accused/petitioner. The petitioner appeared before court as per summons and he was released on bail. The trial Court framed charges under Sec. 138 of the Act and P.W. 1 was examined in-chief and posted the case for cross-examination at the request of the accused. On the next date of hearing, the accused filed an application under Sec. 258 Cr.P.C. to stop further proceedings. After hearing both parties, the Magistrate rejected this application. The said order is questioned in this petition.
3. Heard the learned advocates appearing for the respective parties.
4. The learned counsel for the petitioner at the very outset submitted that the notice said to have been issued through the advocate of the respt. was not signed and, therefore, it is not a notice in the eye of law as contemplated under Sec. 138(b) of the Act. He further submitted that on that ground itself the learned Magistrate ought to have rejected the complaint.
5. Per contra, the learned counsel for the respondent submitted that though the notice was not signed by the advocate, the notice received by him shall be construed as a notice as filed under Sec. 138(b) of the Act. In view of this submission, it is necessary now to refer to Sec. 138 which reads :
"Provided that nothing contained in this section shall apply unless -
(a) .....
(b) 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 fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) ....."
From this it is abundantly clear that Sec. 138(b) does not contemplate that the notice should be signed by the party. Admittedly, the notice was issued through the advocate for respondent and the same is dt. 5-4-95 but the same was dispatched on 7-4-95 by the advocate without bearing his signature.
6. The learned counsel for the respondent placing reliance on a decision Sha Jetmal v. The General
Manager, Southern Railways vehemently argued that notwithstanding the fact that the notice was not signed by the party, still it is a valid notice. It is held by our High Court that notice even though unsigned, sufficiently complied with requirements of Sec. 80 is a valid notice.
7. The leaned counsel for the petitioner vehemently argued that this decisions not applicable as the said decision was rendered by the Court with a reference to Sec. 80 CPC. On the other hand, this notice is required in a criminal case as contemplated under Sec. 133(b) of the Act. In a criminal case all the requirements of the provisions of law will have to be complied with, failing which the complaint is liable to be rejected. The object of issuing notice is absolutely clear from the reading of Sec. 138. The object and purpose is to give an information to the person who had issued the cheque that the said cheque was dishonored, so as to facilitate him to make good the amount within 15 days from the date of receipt of such information from the holder of the cheque. Whether that purpose is achieved is the only question that arises for consideration. Similar is the object under S. 80 of the CPC, wherein the Government should be given notice of 2 months, so as to settle the claim of the person who has got issued the notice. In this case also, the advocate has given full description of the respondent and he has also stated the particulars of the cheque and also the fact that the same was dishonored by the bank when presented by the respondent for want of sufficient funds and he also requested him to pay that amount within 15 days failing which he would proceed against him under Sec. 138 of the Act, etc. From this detailed description it is abundantly clear that the petitioner had come to know of the purpose for which the notice was issued by the advocate. Therefore, the learned advocate had satisfied all the necessary ingredients of Section 138 of the Act, but only by mistake he had not signed the notice. Therefore, that itself would not in any way lead to come to a conclusion that the notice issued by the advocate without his signature is invalid in the eye of law. Hence, the argument of the learned counsel for the petr. is unsustainable.
8. It is further contended by the learned counsel for the petitioner that the notice should be served on the petitioner/accused within 15 days from the date of dishonor of the cheque. The cheque was presented on 23-3-95 and the respondent came to know on 24-3-95 from the bank that the same was dishonored for 'insufficiency of funds'. The respondent's counsel issued the notice on 7-4-95 and the same was received by the petitioner on 19-4-95. If the cheque was received on 19-4-95 which was issued on 24-3-95, naturally, it is beyond 15 days. from the date of dishonourment of the cheque. The only question is : Whether the notice must be issued within 15 days or that the complainant must receive that the notice served on the accused within 15 days. From the reading of Sec. 138(b) quoted above, it is clear that the holder of the cheque should give notice to the drawer of the cheque within 15 days of the receipt of information from the bank regarding the return of the cheque as unpaid. It does not say that the notice should be served on the accused within 15 days. However, the learned counsel for the petitioner has placed reliance on a decision reported in (1992 (suppl.) MWN (Cri) All 38) B. S. Bhatnagar v. M/s. Agarwal Investment Co., wherein it is held :
"Notice must be served within fifteen days of receipt of the information from the Bank regarding the return of the cheque as unpaid - Notice served beyond the stipulated limitation of 15 days - as a consequence to non-compliance of the condition mentioned in Provision (b) to S. 138 the provisions of S. 138 could not be attracted against the drawer of the dishonoured cheque."
In that case, on 15-3-90 the applicant received a cheque No. 43557 drawn on the National Bank Ltd., Ghaziabad in favour of the complainant for a sum of Rs. 3,094/-. The said cheque was presented through their banker State Bank of India, Kavi Nagar, Ghaziabad for collection. It was returned with the remark "refer to drawer", the complainant did not mention the date when the cheque had been returned but the complaint did mention the fact that notice was thereafter sent by the complainant to the applicant by registered post on 20-6-1990 asking the applicant to make the payment of the cheque within 15 days. However, the Magistrate had taken cognizance of the case and ordered to issue summons. That order was questioned before the High court. In that case, it was observed that the complainant came to know on 26-3-90 and the registered notice should have been sent on or before 10-4-90, but the notice was despatched by the complainant on 26-9-90 which was beyond the period of 15 days on the ground that the High Court has held that the complaint is not maintainable. Though the synopsis shows that the notice must be served within 15 days of receipt of the information, from a perusal of the body of the Judgment, it is clear that notice will have to be sent within 15 days. Therefore, this decision also would not come to the rescue of the petitioner. In this case, the petitioner has issued a valid notice. Such being the position of law, the contention of the petitioner that the notice must be served within 15 days from the date of non-payment of the amount by the bank for 'insufficiency of funds' cannot be accepted.
9. Lastly, the learned counsel for the petr. submitted that the complaint does not contain the averments that the Addl. C.M.M. Court has jurisdiction to try the case. In view of this contention it is now necessary to refer to Sec. 142(c) of the Act which reads as follows :
"no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Sec. 138."
Admittedly, the complaint was presented before the IX Addl. Chief Metropolitan Magistrate, Bangalore and according to Sec. 142(c) of the Act, the C.M.M. also has jurisdiction. The cheque was issued in Bangalore and it was drawn on Karnataka State Co-op. Bank Ltd., Banashankari Branch, Bangalore, and there is absolutely no dispute regarding the fact that the 9th Addl. C.M.M. has jurisdiction over that area. Therefore, just because the complaint does not contain the averments that-that Court has jurisdiction, itself is not sufficient to hold that the complaint is liable to be rejected.
10. For the foregoing reasons, I hold that the petitioner has failed to establish any of the grounds to interfere with the order passed by the learned Magistrate. Accordingly, this petition has no merits and the same is rejected.
11. Petition dismissed.
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