NARMADA ENTERPRISES Vs. STATE OF A P

JUDGEMENT

(1.) Since both the petitions are interconnected they are being disposed of by a common order.

(2.) Second respondent in these petitions filed complaints under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") against the petitioners in connection with the dishonour of the cheques issued by the second petitioner on behalf of the first petitioner, alleging that in spite of statutory notice of intimation of dishonour with demand for payment of the amounts covered by the dishonoured cheques being issued, petitioners did not pay the amounts covered by the dishonoured cheques. After service of summons, in the cases, petitioners filed petitions seeking discharge alleging that immediately after dishonour of the cheques in the first instance, second respondent sent a fax message about the dishonour and so cause of action for initiation of proceedings under Section 138 of the Act arose on issuance of the fax message and since the fact that the cheques were presented for the second time would not arrest the running of time from the date of fax message, complaints filed several months after issuance of fax message are clearly barred by time. The learned Magistrate dismissed the petitions on the ground that the points raised by the petitioners cannot be decided at that stage as those questions can be decided only after full-fledged trial. Questioning that order, petitioners filed these petitions, with a further prayerto quash the complaints against them.

(3.) The main contention of Sri T. Jagadish, learned counsel for the petitioners is that since second respondent immediately after dishonour of the cheques issued a fax message on 22-11-2002 intimating the dishonour and demanding payment within 15 days and since the legal notice dated 11-12-2002, in a way, admits issuance of such message it is clear that the cause of action for initiation of proceedings arose immediately after issuance of the fax message in November 2002, complaints filed towards the end of February 2003 are clearly barred by time. It is his contention that the case of second respondent that as per the instructions of petitioners the dishonoured cheques were represented in the bank for payment cannot be accepted because no such communication from the petitioner is produced by the 2nd respondent in as much as Sections 51 to 53 of the Companies Act, lay down that communication to a company can only be in writing and so it is clear that there cannot be oral communication with or by a company and so it is clear that the alleged representation on 'intimation from the petitioners is not and cannot be true. It is his contention that since the fax message received from the second respondent also contains copies of the endorsements received from the bank with copies of the returned cheques and since those documents can only be available with the second respondent but not the petitioners the fax message produced by the petitioners cannot be disbelieved. Relying on Prem Chand Vijay Kumar v. Yashpal Singh and Sil Import, USA v. Exim Aides Silk Exporters, Bangalore. He contended that the complaints are liable to be quashed as time barred.