RAJNEESH AGGARWAL Vs. AMIT J BHALLA

JUDGEMENT

(1.) Leave granted.

(2.) The complainant is the appellant against the impugned orders dated 13-8-1999 of a learned single Judge of the Himachal Pradesh High Court in three miscellaneous criminal petitions filed under Sec. 482 of the Code of Criminal Procedure. By the impugned orders, the learned Judge quashed three criminal complaints filed under Sec. 138 read with Sec. 141 of the Negotiable Instruments Act. Admittedly, three cheques had been given to the appellant, drawn on Bank of Baroda, Parliament Street, New Delhi, representing different amounts, amounting to Rs. 2,32,600 in all. These cheques were presented by the appellant for encashment, but the same were returned with the endorsement payment stopped by the drawer. The appellant, therefore, served notices on the respondent, calling upon him to pay the amount of cheques within 15 days of the receipt of the notice. Since the respondent failed to pay the amount, the complaints were filed in the Court of Chief Judicial Magistrate, Kullu. The learned Magistrate proceeded to hold inquiry under Sec. 202 of the Code of Criminal Procedure, and thereafter, took cognizance of the offence and directed issuance of process. The accused-respondent challenged the order of the Magistrate, issuing process by filing application under Sec. 482 inter alia on the ground that the stoppage of payment by the drawer does not constitute an offence under Sec. 138 of the Negotiable Instruments Act and service of notice, as contemplated under proviso (b) to Sec. 138 of the Act has not been proved. Those petitions however were dismissed by the High Court by order dated 25-3-1998. It was held by the High Court that in view of the judgment of the Supreme Court in Modi Cements Ltd. v. Kuchil Kumar Nandi, 1998 (3) SCC 249 : 1998 (2) GLR 1620 (SC) : JT 1998 (2) SC 198, there is no merit in any of the petitions and the same accordingly stand rejected. It was, however observed that the accused shall be at liberty to raise all such points as may be available to him during the trial of the case before the trial Court. After dismissal of the respondents application filed under Sec. 482 of the Code of Criminal Procedure the respondent filed application before the Magistrate for recalling the issuance of process. The Magistrate however dismissed those applications. The accused, therefore, filed the petitions before the High Court again under Sec. 482. The High Court having allowed the application filed under Sec. 482 by the impugned orders dated 1-2-1999, the complainant has preferred these appeals against the same. Two contentions had been raised before the High Court by the accused:

(3.) It may be stated at this stage that in the earlier round of litigation, when the accused had filed application under Sec. 482 of the Code of Criminal Procedure, it had been urged that the service of notice, as contemplated under proviso (b) to Sec. 138 of the Act, has not been proved, but yet the Court refused to exercise jurisdiction under Sec. 482 and refused to quash the proceedings. The learned Judge after analysing the provisions of Sec. 138 of the Negotiable Instruments Act, came to hold that before an offence under the said provision can be said to have been made out, it must be shown that the cheque was presented to the bank for encashment within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier; the payee or holder in due course of the cheque makes demand for the payment of the amount of money under the cheque by giving a notice in writing to the drawer of the cheque within 15 days of information received by him from the bank regarding dishonour of the cheque; and the drawer of the cheque fails to make payment of the amount of money within 15 days of the receipt of notice. The High Court, however construed, the notices issued to the accused-respondent, as a notice in his individual capacity and not to the company. M/s. Bhalla Techtran Industries Ltd., notwithstanding the fact that the notice was addressed to Shri Amit J. Bhalla, Techtran Industries Ltd., 116-Jor Bagh, New Delhi-110 003 and therefore, it was not a notice to the drawer. The High Court further held that the judgment of this Court in Bilakchand Gyanchand Co. v. A. Chinnaswami, 1999 (5) SCC 693 : 1999 (2) Scale 250 will have no application to the facts of this case. It ultimately came to the conclusion that in the absence of requisite notice to the drawer of the cheque, no offence can be said to have been committed by the company within the meaning of Sec. 141 of the Act.