B S BHATNAGAR Vs. AGARWAL INVESTMENT COMPANY

JUDGEMENT

(1.) GIRIDHAR Malaviya, J. This revision is directed against the order dated 17-12-1990 passed by First Addl. Chief Judicial Magistrate, Ghaziabad against the applicant in complaint Case No. 787 of 1990 under Section 138, Negotiable Instrument Act, Police Station Bihani Gate, District Ghaziabad.

(2.) A complaint dated 23-10-1990 was lodged against the applicant by M/s. Agarwal Investment Co. wherein it had been stated that on 15-3-1990 the applicant had issued a cheque No. 43557 drawn on the National Bank Ltd. Ghaziabad in favour of the complainant for a sum of Rs. 3094 onlyand when the said cheque was presented by the complainant through their banker State Bank of India, Kavi Nagar, Ghaziabad for collection it was returned with the remark "refer to drawer", the complaint did not question the date when the cheque had been returned by the complainant did mention the fact that a notice by 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. Alleging that despite the receipt of the said registered notice the amount of the cheque had not been paid the prayer was made in the complaint to punish the applicant under Section 138 of the Negotiable Instruments Act as amended by Act 66 of 1986. The Magistrate by the impugned order found that a prima facie case under Section 138 of the Negotiable Instruments Act had been made out against the applicant with the result that the impugned order a summoning the applicant was passed by him,

(3.) A perusal of proviso (b) clearly shows that unless the payee or the holder in due course of the cheque gives the notice in writing within 15 days of the receipt of information by him from the bank regarding the return of cheque as unpaid the provisions of Section 138 shall not be attracted. To make out this point learned Counsel for the applicant has drawn my attention to the registered notice sent by the complainant to the applicant in his capacity as the Director of M/s. Anand Prataphool Vitta Nigam Ltd. which has been annexed as Annexure-D to the affidavit filed by the applicant here in this Court. A perusal of the said notice indicates that the complainant had clearly averred therein that the dishonoured cheque was received back by the complainant on 26-3-1990. In view of the fact that the information that the cheque had been dishonoured had become known to the complaint on 26-3-1990, the registered notice as required under proviso (b) to Section 138 had necessarily to be given to the drawer of the cheque i. e. the applicant within 15 days from 26-3-1990 which would be latest upto 10-4- 1990. How evar as has been mentioned above the complaint itself says that this notice was despatched by the complainant on 20-6-1990 which was beyond the period of 15 days as is contemplated in the proviso (b) to Section 138 of the Negotiable Instruments Act, 1881. Conse quently due to non- compliance of this condition as is mentioned above the provision of Section 138 could not be attracted against the applicant.