Cr. R. No.1569 of 2009

11th February, 2010

Petitioner Counsel: ASHISH TIWARI
Respondent Counsel: DINESH UPADHYAY

Cases Cited:
Prem Chand Vijay Kumar Vs. Yash Pal Singh, 2005 ALL MR (Cri) 2029 (S.C.)=2005(4) MPLJ 5 [Para 3,8]
D. Vinod Shivappa Vs. Nanda Belliappa, 2006(6) SCC 456 [Para 6]

JUDGMENT

-The applicant/accused has preferred this revision under section 397/401 of the Criminal Procedure Code being aggrieved by the judgment dated 10-9-2009 passed by the 1st Addl. Sessions Judge, Tikamgarh in Criminal Appeal No.66/09, affirming with some modification with respect of the sentence awarded, in default of depositing the fine amount, the judgment dated 6-4-2009 passed by JMFC, Tikamgarh in Criminal Case No.1881/08, convicting him for the offence under section 138 of the Negotiable Instruments Act (in short 'the Act') with a direction to undergo one year simple imprisonment with fine/damages of ' 3,00,000/-, in default of depositing the same, further 3 months simple imprisonment with further direction that on depositing such sum, the same be given to the respondent/complainant. It is noted that in appeal in the sentence in default of depositing the aforesaid sum, has been set aside by the Appellate Court.

2. The facts giving rise to this revision in short are that there was some regular loan transaction between the respondent/complainant and the applicant. In connection of such transaction, to make payment to the respondent, the applicant gave him a cheque of ' 3 lacs dated 28-1-2004 bearing No.0009011 drawn from Union Bank of India, Branch Tikamgarh. After receiving the cheque, the same was deposited by the respondent with his banker Zilla Sahakari Kendriya Bank, Tikamgarh for its collection but the same was dishonored and was received back unpaid by the respondent from his banker with a memo dated 31-1-2004 stating that same has been dishonored on account of insufficiency of fund in the account. Thereafter, the respondent, through his counsel, sent the demand notice dated 9-2-2004 and 26-2-2004 to the applicant. The same were received back with an endorsement that addressee was not available. Thereafter again a notice dated 23-3-2004 was sent to the applicant through registered post. The same was served but in spite that within the prescribed period, in compliance of the notice, payment of the cheque was not made, on which, respondent filed the impugned complaint against the applicant on 7-5-2004 for the offence under section 138 of the Act. After taking cognizance of the matter by the trial Court, the applicant was summoned. After his appearance, on recording the plea, the applicant abjured the same, on which the trial was held. After recording the evidence, on appreciation of the same, by holding guilty to the applicant, the trial Court has convicted and sentenced him as stated above, on which, the appeal was filed by the applicant. After extending the opportunity of hearing, the sentence awarded to the applicant, with respect of making default in depositing the damages amount, was set aside while the other findings of the trial Court were affirmed by the Appellate Court. Being dissatisfied with such judgment, the applicant has come forward to this Court with this revision.

3. Shri. Ashish Tiwari, learned counsel of the applicant while arguing the case on admission, by referring the exhibited documents and the recorded evidence said that as per case of the complainant the impugned cheque was dishonoured and its information was received by the applicant from the bank through memo dated 31-1-2004 therefore the initial cause of action arose to the respondent for issuing the demand notice on such date. As per provision of section 138(b) of the Act, such demand notice was to be issued within thirty days from such date. Although, as per the available evidence on record, the initial notices dated 9-2-2004 and 26-2-2004 were sent by the respondent to the applicant during such period but due to non-availability of respondent, the same were not served. The notice which was served on the respondent was sent on 23-3-2004. The same was barred by thirty days from 31-2-2004, the date of initial cause of action. According to his submission, the limitation for issuing the demand notice ought to have been construed by the Courts below from 31-1-2004 and not from 23-3-2004. In continuation it was argued that as per the settled position, if the technical provision of sections 138 and 142 of the Act are not followed by the drawee, the complainant, then persons like the applicant could not be convicted for such offence. In support of his contention, he placed his reliance on a decided case of the Apex Court in the matter of Prem Chand Vijay Kumar Vs. Yash Pal Singh and another, 2005(4) MPLJ 5 : [2005 ALL MR (Cri) 2029 (S.C.)] and prayed for admission of this revision.

4. Having heard the applicant counsel, I have carefully gone through the record of the trial Court as well as the impugned judgment of the Courts below. It is apparent from such record that after receiving the information of dishonouring the cheque (Ex.P/1) on account of insufficiency of fund through memo dated 31-1-2004 (Ex.P/3) of Zilla Sahakari Kendriya Bank, Tikamgarh, the respondent gave the first notice dated 9-2-2004 (Ex.P/4) through receipt Ex.P/5. The same was returned back unserved with the endorsement that the addressee was not found on the mentioned address, on which, again a demand notice dated 26-2-2004 (Ex.P/6) was sent through registered post receipt Ex.P/7. The same was also received back unserved with the endorsement that the addressee was not found at the mentioned address. Accordingly, abovementioned both the notices were not served on the applicant, on which, the third notice dated 23-3-2004 (Ex.P/8) was sent to the applicant through registered post receipt Ex.P/9. As per the concurrent findings of both the Courts below, such notice was duly served on the applicant. After service of the aforesaid third notice within the prescribed period of 15 days, as per provision under section 138(c) of the Act, the payment of cheque amount was not made by the applicant within 15 days on which before expiry of 30 days, on 7-5-2004, within thirty days in compliance of section 142 of the Act, the impugned complaint was filed by the respondent.

5. So far admission of this revision is concerned, this Court has to consider the question whether in the abovementioned circumstances, the cause of action to file the complaint was available to the respondent after service of the third notice dated 23-3-2004 (Ex.P/8) or not or, the limitation for filing the complaint should have been counted by the trial Court and the Appellate Court from the date of issuing the first notice dated 9-2-2004 (Ex.P/4).

6. On earlier occasion, taking into consideration the identical situation with slight differences on facts. the Apex Court, after considering such aspect has laid down the law in the matter of D. Vinod Shivappa Vs. Nanda Belliappa, 2006(6) SCC 456 which reads as under :-

"14. If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non-availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere, etc. etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for some time after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. There is good authority to support the proposition that once the complainant, the payee of the cheque, issues notice to the drawer of the cheque, the cause of action to file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under Clause (c) of the proviso to section 138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non-availability can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the legal notice which may be returned with an endorsement that the addressee is not available on the given address."

7. In view of the aforesaid decisions of the Apex Court, the findings of both the Courts below, on appreciation of evidence holding that the third notice of the respondent was served on the applicant, being finding of fact could not be interfered in the revisional jurisdiction by reappreciating the evidence. In any case, in view of the aforesaid dictum of the Apex Court, in the available facts and circumstances, the cause of action was available to the respondent for filing the abovementioned complaint after service of the third notice dated 23-3-2004 (Ex.P/8) and from such date, undisputedly. the payment was not made by the applicant to the respondent within 15 days and thereafter before expiry of thirty days, the impugned complaint was filed. Hence the findings of the Courts below could not be said to be contrary to the law in any manner.

8. So far the case law cited by the applicant in the matter of Prem Chand (supra) is concerned, the same is also not helping to the applicant because in such case it was held as under :-

"11. 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."

9. Undisputedly, the applicant had not made the payment of cheque within 15 days from the service of the demand notice dated 23-3-2004. Thus in view of aforesaid dictum, the impugned complaint of the applicant could not be deemed to be barred by time. Therefore, in view of abovementioned discussion, I have not found any perversity in the impugned judgment requiring any interference at this stage under the revisional jurisdiction of this Court. Consequently, this revision is hereby dismissed at the stage of motion hearing. In such premises, the interim order passed earlier for suspension of the abovementioned sentence has come to an end. Pursuant to it, the applicant is directed to surrender himself before the trial Court on or before 28-2-2010 to serve the remaining jail sentence awarded by the Courts below. If the applicant is not surrendered within the aforesaid period then, the trial Court shall be at liberty to take appropriate steps to service the remaining sentence to the applicant.

10. Petition is dismissed as indicated above.

Petition dismissed.