HARICHANDRA EKNATH PHAPALE Vs. LAHANU SHANKAR TAKALKAR

JUDGEMENT

(1.) THIS criminal application under section 482 of Code of Criminal Procedure is challenging an order passed by the Revisional Court refusing to interfere with an order of the learned Magistrate issuing process and summoning the applicant to answer the averments in an complaint arising out of dishonoured cheque. The offences alleged are punishable under Negotiable Instruments Act, 1881.

(2.) THE only submission which is canvassed before me is that the orders suffer from error apparent on the face of record. The submission is that before a complaint could be filed alleging that offences under the aforesaid act have been committed, it is necessary that the complainant issues a notice as contemplated by Section 138(1)(b). Such a notice has to be given in writing to the drawer of the cheque. In this case, the drawer of the cheque has not received any such notice. The notice which is purportedly dispatched, has been on the own showing of the complainant returned with the postal remark that the addressee has shifted to some other place. If the postal acknowledgement is of such nature, then it cannot be said that the provisions pertaining to the demand/notice in writing have been complied with. It is the obligation thereafter of the complainant to ascertain the changed address and if it is so, issue fresh notice. That being admittedly not done, the complaint does not disclose any offence and, therefore, the order issuing process is unsustainable in law.

(3.) AFTER perusing the complaint and the application recalling issuance of process so also orders passed by learned Magistrate and Revisional Court, in my view, the process has been issued after perusal of the complaint and after the Court was satisfied that the cheque was dishonoured. The complaint after being accepted, verification statement being recorded and the Court being satisfied, issued a process summoning the accused. It is open for the accused to raise such pleas as are permissible in law to displace the presumption as above. The issue as to whether the notice was indeed not received, is something which must be gone into at the trial. By mere issuance of process it is not as if the applicant would not have an opportunity to raise that plea and substantiate it. The conclusion at a prima facie stage cannot be said to be of such nature so as to take away the right of the applicant to rebut the presumption by leading evidence. Keeping all such pleas of both sides open and clarifying that the orders would not in any manner affect the same, this application is dismissed.