A GANGADHAR Vs. K PRASAD

JUDGEMENT

(1.) In this revision the petitioner has challenged the legality, propriety and correctness of the Order dated 25.2.2002 passed by the S.D.J.M., Puri in ICC No. 119 of 2001 wherein he refused to take cognizance of the offence under Section 138 of the Negotiable Instruments Act, (here-in-after referred to as 'N.I. Act') and dropped the proceeding.

(2.) The petitioner was the complainant and the opp. party was the accused in the aforesaid complaint case. As per the complaint petition, the complainant deals in fishing net and boat materials. He used to supply the same to different persons including the accused on credit and collects the price thereof subsequently. In the process the accused owed a sum of Rs.80,000/- to him by 15.4.2001. On request of the complainant on 18.4.2001 he handed over to him a post dated cheque (dated 20.4.2001) amounting to Rs. 40,000/- drawn from Andhra Bank, Puri branch. The complainant presented the cheque in his Bank i.e., United Puri-Nimapara Central Cooperative Bank, Puri on 19.4.2001 for collection. Accordingly it was sent to Andhra Bank, Puri Branch, but since the accused had no sufficient money in his account, it was dishonored and United Puri-Nimapara Central Co-operative Bank, Puri returned the cheque to complainant on 21.4.2001. On 30.4.2001 the complainant, sent a notice through his advocate to the accused demanding the cheque amount. As payment was not made, on 15.5.2001 he filed the ICC Case No. 51 of 2001 against the accused before the Court of S.D.J.M. Puri wherein cognizance was taken under Section 138 of the N.I. Act on 17.5.2001. On 29.5.2001 accused filed a petition to recall the order of taking cognizance on the ground that he did not receive any notice either from the complainant or his advocate and the averment that he received notice on 2.5.2001 is false. As per the petition even if it is believed that he received the notice on 2.5.2001, since the complaint petition was filed, before expiry of the statutory period of 15 days of receipt of the notice the order of taking cognizance is illegal on the very face of record. The Court below rejected the petition holding that the question of service of notice is purely a question of fact and could be gone into during trial. It is relevant to mention here that on 11.10.2001 the complainant filed a petition to return the cheque to present it again in the Bank on the ground that on verification he ascertained that the complainant did not receive the notice personally. Accordingly the cheque was returned to the counsel for the complainant on condition that he would re- file it as and when required by the Court. The complainant, then deposited the same in his Bank for collection on 12.10.2001. On being sent to Andhra Bank, Puri Branch it was again dishonoured on the ground of insufficiency of fund in the account of the accused. So the complainant again sent notice to the accused by registered post on 18.10.2001. In order to serve the notice, the postman went to the house of the accused several times in between 19.10.2001 to 30.10.2001 but he deliberately avoided to receive the same. As the accused did not pay the cheque amount within 15 days the complainant filed a second complaint case bearing ICC No. 199 of 2001 against the accused on 19.11.2001. The S.D.J.M. refused to take cognizance in the second complaint case on the ground that cognizance under Section 138 of N.I. Act had already been taken in ICC case No. 51 of 2001 in respect of the same cheque and accordingly dropped the case.

(3.) Being aggrieved with this order the complainant has filed the present revision as stated earlier. Learned Counsel for the petitioner submitted that the Opp. Party- accused in the petition dated 29.5.2001 stated that he did not receive notice said to have'been sent to him by the petitioner through his advocate demanding payment of money. So the dishonour of the cheque remained without further escalation and did not snowball into a cause of action. When the cheque was presented for second time, it was again dishonoured on the similar ground of insufficiency of fund. Notice was sent to the Opp. Party-accused demanding payment of money, but he avoided to receive it. When he did not make payment within the statutory period of 15 days the petitioner fifed the second complaint bearing ICC No. 119 of 2001. So there was no bar to take cognizance under Section 138 of N.I. Act against the Opp. Party-accused on the second complaint. In support of his submission he relied on the decision in M/s. Uniplas India Ltd. and others versus State (Gout, of NCT of Delhi) and another, AIR 2001 SC 2625 where the Hon'ble Apex Court held :