RAKESH NEMKUMAR PORWAL Vs. NARAYAN DHONDU JOGLEKAR

JUDGEMENT

(1.) ON the unusual facts that have emerged before us in this petition, certain interesting points of law have been canvassed which are of some consequence having regard to the fact that they concern the ambit and scope of section 138 of the Negotiable Instruments Act. This recently introduced provision of law was specially placed on the Statute Book for purposes of making the dishonour of cheques punishable by a Criminal Court and thereby providing a speedy and efficacious remedy to the victim of such a situation. The provision, however, prescribes certain conditions and limitations which have been seriously debated in the course of the hearing of this petition and which are summarised by us below as they substantially represent the high points of the issues in controversy :

(2.) THE facts that are material for purposes of the decision of this petition are set out in brief. Admittedly, the petitioner before us, at the relevant time, was the Executive Director of a limited company doing business under the name and style of M/s. Porwal Pulp and Paper Mills Ltd. As appears from the record, respondent No. 1, who is the complainant before the trial Court, has made certain supplies to the mills and it is his case that 12 cheques, each one in the sum of Rs. 15,000/- were issued to him towards payment against the goods in question. That the supplies had taken place several months earlier is not in dispute and we are not immediately concerned with the exact dates or the nature of those transactions. The 12 cheques in question were presented to his bankers on the 21st of June, 1991. All the 12 cheques were returned by the complainants bankers with the endorsement "refer to drawer". This was communicated to the complainant on 8-7-1991. The complainant thereupon addressed separate notices in respect of each cheque, all of which are dated 18-7-1991 and these notices were despatched to the accused under Registered Post with acknowledgment due. The complainant states that on 29-7-1991, the entire bunch of notices was delivered by the postal authorities to the accused. The date is of some significance because it is in relation to this date that the entire controversy has arised. We shall presently deal with those circumstances which we are setting out in the narrative. Thereafter, on 9-8-1991, the complainant approached the trial Court at Satara and he filed 12 separate complaints each in respect of one of the cheques. The complainant discloses that the offence alleged was one under section 138 of the Negotiable Insturments Act. The learned Magistrate, as the record indicates, on the same day took down the verification of the complainant and issued process against the accused under section 138 of the Negotiable Insturments Act as also under section 420 of the Indian Penal Code. It is in relation to this order issuing process which is dated 9-8-1991 that the present petition has been filed. The petitioner before us has invoked the inherent jurisdiction of this Court and has contended on a number of grounds that the proceedings before the trial Court are liable to be quashed. The respondent No. 1 who is the original complainant has filed a detailed affidavit and has also relied on several documents as annexures to that affidavit on the basis of which he has sought to justify the order whereby process was issued.

(3.) MR. Manohar, learned Counsel appearing on behalf of the petitioner has, in the first instance, assailed the maintainability of the proceeding initiated before the trial Court because, it is his case that no offence whatsoever was disclosed on 9-8-1991, when the learned Magistrate took cognizance of the complaint and issued process. In support of this contention, Mr. Manohar has advanced the submisiion that the provisions of section 138 of the Negotiable Instruments Act specifically lay down a requirement that certain conditions are required to be complied with and according to Mr. Manohar, in the absence of these conditions, no offence can be said to have been complete. He proceeds to state that if as on 9-8-1991, no offence can be said to have been committed by the accused, that no complaint could have been presented in respect of such alleged offence and consequently, that the Magistrate was wrong in issuing process. Mr. Manohars submission is that the proceedings themselves are liable to be quashed on the grounds that they have been made out by him.