JASPAL SINGH Vs. PARAMJEET SINGH

JUDGEMENT

(1.) A complaint came to be filed under Section 138 of the Negotiable Instruments Act (Act for short) in the court of learned Special Municipal Magistrate, Jammu on 30 -05 -1998 by Shri Paramjit Singh, the complainant -respondent herein, against Shri Jaspal Singh accused -petitioner herein. The Ld. Magistrate took the cognizance and issued the process. By medium of an application, the accused -petitioner sought dismissal of the complaint alleging violation of proviso (b) to Section 138 because of the absence of the actual date in the complaint with respect to the demand for the payment. The motion did not find favour with the Ld. Magistrate and was rejected by order dated 03 -03 -2000. Against this order a revision was taken before the Ld. Additional Session Judge Jammu, who made the reference for quashing the same.

(2.) IT transpires from the complaint that the petitioner had approached the complainant for loan which was advanced to him and towards the satisfaction of such debt the complainant was given a cheque dated 01 -03 -1998 (annexure PA to the complaint) for Rs. 2/ - lacs, favouring the complainant -respondent drawn on the Bank of India. The cheque was presented by the respondent to his Banker, the State Bank of India Railway Station Branch Jammu (SBI for short) which was forwarded to the Bank of India by SBI seeking transfer of the amount to be credited to the respondents account. It was dishonoured by the Bank of India with an endorsement "insufficient funds" vide "CHEQUE RETURN MEMO" dated 16 -03 -1998 (annexure PC to the complaint). Consequently, the SBI wrote a memo to the respondent on 04 -04 -1998 (annexure PB to the complaint) communicating its inability to obtain the payment for the reasons reflected in the memo of the Bank of India. The postal cover which contained the memo dated 04 -04 -1998 is also annexed with the complaint as annexure PC -1. It reveals that it was despatched under No. 4034 on 15/4 by the SBI and was received in the post office on 16 -04 -1998. These documents and the factual assertions made in the complaint prompted the Ld. Magistrate to issue the process which is sought to be set at naught by reference in question because of two -fold reasons,, the one being omission on the part of the complainant to name the date in the complaint regarding demand for payment and the other filing of the complaint beyond 15 days period. To appreciate the controversy. Section 138 of the Act is extracted here under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account -Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation: - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."

(3.) A plain reading of the proviso (b) reveals that a demand for the payment of amount of money has to be made to the drawer of the cheque by giving a written notice within fifteen days from the date of receipt of information regarding the return of the cheque as unpaid which would mean that the period of fifteen days stipulated by the proviso has to begin from the date the payee or the holder of the cheque receives the information of dishonour. The provision makes it clear in unambiguous terms that the demand through a written notice is a mandatory requirement but to give the definite date in the complaint on which notice was given to the drawer is not a mandatory obligation. Obviously, omission to name the date in the complaint is not a ground tenable in law which would clothe the Ld. Magistrate with the power to refuse the process and cognizance, provided the material placed before the Ld. Magistrate prima facie reveals that the demand for payment was made in writing, of course, within stipulated period of fifteen days which period has to begin from the date information regarding the return of the cheque as unpaid is received by the payee or the holder in the due course of the cheque (emphasis supplied) and in my opinion no other view is possible.