VISHWANATH GHOSH Vs. RAMESH CHANDRA SINDHI

JUDGEMENT

(1.) The applicant/accused has preferred this revision under section 397/401 of the Criminal Procedure Code being aggrieved by the judgment dated 10-9-2009 passed by the 1st Addl. Sessions Judge, Tikamgarh in Criminal Appeal No. 66/09, affirming with some modification with respect of the sentence awarded, in default of depositing the fine amount, the judgment dated 6-4-2009 passed by JMFC, Tikamgarh in Criminal Case No. 1881/08, convicting him for the offence under section 138 of the Negotiable Instruments Act (in short 'the Act') with a direction to undergo one year simple imprisonment with fine/damages of Rs. 3,00,000/-, in default of depositing the same, further 3 months simple imprisonment with further direction that on depositing such sum, the same be given to the respondent/complainant. It is noted that in appeal in the sentence in default of depositing the aforesaid sum, has been set aside by the Appellate Court.

(2.) The facts giving rise to this revision in short are that there was some regular loan transaction between the respondent/complainant and the applicant. In connection of such transaction, to make payment to the respondent, the applicant gave him a cheque of Rs. 3 lacs dated 28-1-2004 bearing No. 0009011 drawn from Union Bank of India, Branch Tikamgarh. After receiving the cheque, the same was deposited by the respondent with his banker Zila Sahkari Kendriya Bank, Tikamgarh for its collection but the same was dishonored and was received back unpaid by the respondent from his banker with a memo dated 31 -1-2004 stating that same has been dishonored on account of insufficiency of fund in the account. Thereafter, the respondent, through his counsel, sent the demand notice dated 9-2-2004 and 26-2-2004 to the applicant. The same were received back with an endorsement that addressee was not available. Thereafter again a notice dated 23-3-2004 was sent to the applicant through registered post. The same was served but in spite that within the prescribed period, in compliance of the notice, payment of the cheque was not made, on which, respondent filed the impugned complaint against the applicant on 7-5-2004 for the offence under section 138 of the Act. After taking cognizance of the matter by the trial Court, the applicant was summoned. After his appearance, on recording the plea, the applicant abjured the same, on which the trial was held. After recording the evidence, on appreciation of the same, by holding guilty to the applicant, the trial Court has convicted and sentenced him as stated above, on which, the appeal was filed by the applicant. After extending the opportunity of hearing, the sentence awarded to the applicant, with respect of making default in depositing the damages amount, was set aside while the other findings of the trial Court were affirmed by the Appellate Court. Being dissatisfied with such judgment, the applicant has come forward to this Court with this revision.

(3.) Shri Ashish Tiwari, learned counsel of the applicant while arguing the case on admission, by referring the exhibited documents and the recorded evidence said that as per case of the complainant the impugned cheque was dishonoured and its information was received by the applicant from the bank through memo dated 31-1-2004 therefore the initial cause of action arose to the respondent for issuing the demand notice on such date. As per provision of section 138(b) of the Act, such demand notice was to be issued within thirty days from such date. Although, as per the available evidence on record, the initial notices dated 9-2-2004 and 26-2-2004 were sent by the respondent to the applicant during such period but due to non-availability of respondent, the same were not served. The notice which was served on the respondent was sent on 23-3-2004. The same was barred by thirty days from 31-2-2004, the date of initial cause of action. According to his submission, the limitation for issuing the demand notice ought to have been construed by the Courts below from 31-1-2004 and not from 23-3-2004. In continuation it was argued that as per the settled position, if the technical provision of sections 138 and 142 of the Act are not followed by the drawee, the complainant, then persons like the applicant could not be convicted for such offence. In support of his contention, he placed his reliance on a decided case of the Apex Court in the matter of Prem Chand Vijay Kumar vs. Yash Pal Singh and another, 2005 4 MPLJ 5 and prayed for admission of this revision.