SANJAY BAHETI Vs. APOLLO TYRES LTD AND OTHER

JUDGEMENT

(1.) These three petitions are identical in as much as the petitioner who has been arrayed as accused in all the three cases is aggrieved of the order taking cognizance of the offence under section 138 of the Negotiable Instruments Act on the basis of consolidated notice dated 31st of July, 1997 wherein instead of calling the petitioner to pay the amount with respect to the said cheque which was dishonoured, the respondent / complainant has demanded the payment of the amount of all the cheques to the tune of Rs. 10,84,817.00 within a period of 15 days from the date of receipt of the notice, failing which threatening the petitioner to be prosecuted under section 138 of the Act.

(2.) It is a case of the petitioner that he is a regular purchaser of the Apollo Tyres and Tubes from the respondent and in fact, during the course of dealing with the respondent / complainant and looking to his image, his over draft was exceeded from time to time. He purchased the types and tubes to the tune of Rs. 10,82,532.00, out of which, he paid Rs. 8.35 lacs in cash to the respondent and gave a post dated cheques of Rs. 2,50,232.00. Those cheques were dishonoured with a remark that the drawer had stopped the payment and account was closed. After receipt of the bank memo, a notice was issued by the respondent to the petitioner demanding the sum of Rs. 10,84,817.00 with an enclosure of list of cheques and their amounts. Since the petitioner did not pay the due amount, a complaint was filed against the petitioner under section 138 of the Negotiable Instruments Act read with section 420 of the Penal Code . A notice was issued to the petitioner with respect to aforesaid complaint. After service of notice, the petitioner appeared before the trial Judge and got their plea recorded. The case was thereafter, listed for complainant's evidence. The petitioner took a objection to the maintainability of the complaint by filing an objection in writing, which has been annexed as Annexure- A/5 & A/6 respectively along with the petition. The petitioner by filing an objection, submitted that the notice in question was not in accordance with the provisions contained in section 138 of the Negotiable Instruments Act. The said objection was not accepted by the trial Judge also on the ground that once process was issued by the JMFC, the said court has no power to review its own power.

(3.) The order of the Magistrate Court was then challenged in revision. The Revisional Court dismissed the revision petition by holding that the notice in question was proper. Some observations were made by the Sessions Court regarding validity of the notice, which is reproduced for the purpose of reference : (Vernacular matter omitted.......Ed.)