GUJRAT AMBUJA PROTEINS LIMITED Vs. RAJEEV KHANDELWAL

JUDGEMENT

(1.) BEING aggrieved by the order dated 17.9.2002 passed by VIII th ASJ, Indore in Cr. R. No. 171/2000 whereby the order dated 23.12.1999 passed by JMFC, Indore in Criminal Case No. 594/99 whereby the complaint filed by the petitioner under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as an "Act") and under Section 420 of IPC was dismissed, was maintained, the present petition has been filed.

(2.) SHORT facts of the case are that on 15.12.1997 a complaint was filed by the petitioner alleging that petitioner is executive of M/s. Gujrat Ambuja Proteins Limited, a Public Limited Company, having its registered office at Ahmedabad and branch at Indore. It was alleged that respondent No. 2 is listed company under the provisions of Companies Act and the respondent No. 1 is Managing Director of respondent No. 2 Company. It was alleged that in discharge of the liability of respondent No. 2 Company respondent No. 1 issued six cheques of Rs. 28,00,000/-drawn on Punjab National Bank, Branch Bombay in favour of the petitioner and sent the same by letter dated 29.7.1996. It was alleged that the said cheques were presented by the petitioners with its banker Punjab National Bank, Indore for collection but upon presentation all the cheques were returned to the petitioner with a memorandum dated 17.9.1996 bearing remark 'insufficient funds'.

(3.) FROM perusal of the record it is evident that the cheques of Rs. 28,00,000/-were dishonoured on 13.10.1997 and notices were sent on 24.10.1997 by fax and also by registered post. Registered notice which were sent were duly served on 28.10.1997 while the complaint was filed on 15.12.1997.13.12.1997 and 14.12.1997 were holiday. After receipt of notices dated 24.10.1997 which was received on 28.10.1997 the petitioner was required to wait for 15 days which is the time given under the statute for payment of cheque money. If the amount has not been paid within 15 days, then only cause of action accrues for the alleged offence under Section 138 of the Act. The only question which is involved in the present case is whether the cause of action accrued after completion of 15 days from 24.10.1997. Learned Courts below placed reliance on a decision of Hon'ble Apex Court in the matter of M/s. Sil Import. USA v. M/s. Exim Aides Silk Exporters, Banglore, 79 (1999) DLT 414 (SC) = III (1999) CCR 15 (SC)= AIR 1999 SC 1609, wherein the notice to drawer of cheque was issued by fax as well as by registered post, Hon'ble Apex Court observed that date of receipt of fax cannot be ignored for the purposes of accrual of cause of action on ground that sender of notice must know when notice is received by drawer.