D NAGARAJ Vs. S BALARAM

JUDGEMENT

(1.) 1st respondent filed a private complaint under Section 138 of the Negotiable Instruments Act (for short the Act) against the petitioner alleging that the cheque dated 24.3.1999 issued by the petitioner in discharge of the debt due to him was dishonoured and that in spite of his sending statutory notice informing him about the dishonour of the cheque and demanding payment of the amount covered by the cheque, petitioner did not make the payment. The same was taken on file by the learned Magistrate.

(2.) Petitioner who is the accused in the said complaint filed this petition under Section 482, Cr.P.C. to quash the proceedings in the C.C. on the ground that there is no legally enforceable debt due from him to the 1st respondent as the same is barred by time and also because averments in the complaint do not disclose that statutory notice of dishonour was served on the petitioner. Which is the sine qua non for initiation of criminal proceeding by relying on M.S. Shakti Travel and Tours v. State of Bihar and Anr., 2000(7) Supreme 90, and Rukhmaniraj Yarn Co. v. Thangapratap Spinning Mills (P) Ltd., II (2001) BC 295=2001 (1) ALD (Criminal) 371 (Madras). It is his contention that since the office copy of the notice allegedly sent to the petitioner shows that 1st respondent demanded payment within seven days, but not within 15 days as contemplated by Section 138 of the Act. The said notice is an invalid notice, and for that reason also the complaint is liable to be quashed.

(3.) The contention of the learned Counsel for the 1st respondent is that statutory notice of dishonour was in fact sent by registered post, but as the 1st respondent did not receive the postal acknowledgement or the returned notice, he addressed a letter to the postal authorities complaining about the same, and since the notice was sent by registered post the presumption is that the petitioner had received the said notice, and relied on Indian Bank v. Datla Venkata China Krishnam Raju, AIR 1991 SC 908, and Attabira Regulated Marketing Committee v. Ganesh Rice Mills, 1996(9) SCC 471, in support of the said contention. Relying on Ravinder Kumar Mahajan v. Sohanlal, 1998(2) A.L.D. (Criminal) 168 (P&H), and Satyavan Chaplot v. Rajendra, 1998(2) A.L.D. (Criminal) 868 (Rajasthan), he contended that merely because in the statutory notice after dishonour, 1 st respondent demanded payment in seven days, the same does not become an invalid notice. Relying on Jiwanlal v. Rameshwarlal, AIR 1967 SC 1118, he contended that since issuance of a cheque towards repayment of debt amount, to an acknowledgement of the debt, fresh period of limitation starts from the date of issuance of the cheque, and so it cannot be said that there is no legally enforceable debt due to the 1st respondent because the borrowing was on 27.1.1996 and the cheque is dated 28.11.1998 and the complaint was filed in 1999.