C E I CONSULTANCY Vs. MODI WORLD INFOTECH

JUDGEMENT

(1.) This petition is filed to quash the proceedings in Criminal R.P.No. 144 of 2000 dated 22-2-2001 confirming the order in Criminal M.P. No. 1257 of 2000 in C.C.No. 313 of 1999 on the file of the Court of the II Metropolitan Magistrate Hyderabad refusing to discharge the petitioners.

(2.) 1st respondent filed C.C. No 313 of 1999 against the petitioners for an offence under Section 138 of the Negotiable Instruments Act (the Act) contending that the first petitioner, which is a firm, is being run by C.R. Singh and C. Ramesh Singh, who are father and son and who are responsible for day- to -day business of the said firm, have on 29-91999 and 6-10-1999 issued cheques for the amount due to it and when those cheques were presented for payment they were dishonoured on 5-10-1999 and 13-10-1999 respectively and intimation of the dishonour of both cheques was received on 11-10-1999 and 20-10-1999 and that it has issued a statutory notice on 22-10-1999 to the petitioners, bringing their notice to the dishonour of cheques and demanding payment of the amounts covered by the cheques and those notices were received by them on 27-10-1999 but they have not paid the amount till the date of filing of the complaint. The learned Magistrate took cognizance of the case and issued process to the petitioners. Petitioners, after being served with summons, filed Crl. M.P. No. 1257 of 2000 to discharge them on the ground that the averments in the complaint do not show any cause of action against them. The learned Magistrate dismissed that petition. Criminal R.P. No. 144 of 2000 filed by them also met with the same fate. Hence this petition.

(3.) The main contention of the learned Counsel for the petitioners is that the contention of the 1st respondent that it sent legal notices to the petitioners on 22-10-1999 is prima facie false because the postal receipts produced by the 1st respondent into the Court, Xerox copies of which are filed with this petition as material documents, clearly show that the notices were sent on 25-10-2000, but not on 25-10-1999 as alleged in the petition, and so it is clear that the notices were in fact sent on 25-10-2000 but not on 25-10-1999 as alleged in the petition and since the receipt of notice of dishonour by the drawer of the cheque is sine qua non for initiation of proceedings under Section 138 of the Act, and since there is no material on record to show that the 1st respondent sent notices to the petitioners before filing of the complaint and it was received by them, the complaint is not maintainable. He placed strong reliance on an unreported judgment of the Bombay High Court in Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar, Criminal Writ Petition No. 561/1992 dt.29-7-1992, extracted in "Cases of Dishonour of Cheques by R. Swaroop, 1994", wherein their Lordships refused to take cognizance of the fresh material produced before them, in support of the case of the complainant that there is a proper notice. He relied on the following observation in para 8 of the above judgment reading :