THE HONOURABLE SRI JUSTICE P.S.NARAYANA
Criminal Petition No.3973 of 2000
29-03-2006
Salvaji Prabhakar Rao
The State of A.P., rep by
Public Prosecutor and another
Counsel for the Appellants: Sri Srinivas Reddy
Counsel for the Respondent No.1: Public Prosecutor
Counsel for the Respondent No.2 :- Sri Venkat Reddy
:Order:-
1. Heard Sri Jitender Rao, the Counsel for petitioner and Sri Venkat Reddy,
the Counsel for R.2-complainant and the learned P.P.
2. The only question raised by the Counsel for petitioner Sri Jitender Rao is
that there was no issuance of statutory notice as contemplated by Section 138 of
the Negotiable Instruments Act (here-in-after in short referred to as 'N.I.
Act'). The learned Counsel would maintain that even if the allegations made in
the complaint, if taken on their face value, in view of the specific allegation,
made that a notice was straight away issued by way of paper publication, the
same cannot be said to be in compliance with the provisions of the N.I.Act.
3. The learned Public Prosecutor however would contend that these aspects may
have to be gone into at the appropriate stage.
4. Sri Venkat Reddy, the learned Counsel representing R.2-complainant would
submit that it is no doubt true that there is no specific allegation in the
complaint that attempts were made to effect service before making the paper
publication but these are all factual aspects which may have to be gone into at
the appropriate stage. The learned Counsel also placed strong reliance on the
decision of this Court in D.Nagaraj v. S.Balaram1.
5. Heard the Counsel.
6. The relevant portion of the complaint filed by R.2-complainant reads as
hereunder:-
"That the accused has issued a cheque bearing No. CA No.826307 dt.15-2-
1994 for Rs.10,000/- to the complainant for repayment of the due amount to the
complainant. The complainant presented the said cheque at Andhra Bank,
Mancherial and the same was sent to Kalyankhani Branch (0803) of Andhra Bank for
collection. But the Branch Manager of Andhra Bank, Kalynkhani branch returned
the cheque along with a memo dt.27-7-94 stating that the cheque cannot be
honoured due to insufficient of funds. On receiving the cheque and dishonour
memo, the Branch Manager of Andhra Bank, Mancherial sent intimation dt.1-8-94 to
the complainant.
That the complainant issued a notice within statutory period of 15 days
through paper publication in Adilabad District edition of Eenadu dt.11-8-94.
After publication of notice, and after expiry of 15 days, grace period, the
accused approached the complainant to wait for 15 days, to enable him to pay the
cheque amount. But no payment was made by the accused to the complainant.
Hence, the accused is liable for punishment under Section 138 and 142 of
N.I.Act."
7. On a careful reading of the allegations made in the complaint, it is clear
that in para 3 it was specified that the complainant issued a notice within the
statutory period of 15 days through paper publication in Adilabad District
edition of Eenadu dt.11-8-94. This is the specific stand taken by the
complainant - respondent No.2 herein. No doubt strong reliance was placed on
the decision of this Court in D.Nagaraj's case (referred 1 supra) wherein the
learned Judge of this Court held at para 6 as hereunder:-
"It is no doubt true that cause of action for filing of the complaint
arises fifteen days after service of statutory notice of demand after dishonour
of the cheque was served on the drawer. In view of the legal presumption
available to the 1st respondent in case of notice sent by registered post, it
can be presumed that the notice was served within two or three days after it was
registered in the post office. Therefore, the cause of action for filing the
complaint can be taken to have arisen about two or three days after statutory
notice was registered in the post office. Since it is not the case of the
petitioner that the complaint is filed beyond 30 days after service of statutory
notice on him, it has to be taken that the complaint was filed within the period
of limitation. As stated above since the presumption is a rebutable
presumption, depending on the evidence adduced by the parties during trial, the
trial Court has to decide whether notice was in fact served or not. But the
complaint cannot be quashed on the ground that notice was not served on the
petitioner. In the facts and circumstances of this case M/s.Shakti Travel and
Tours Limited (2000 (7) Supreme, 90) and Rukhmaniraj Yarn Co. (2001 (1) ALD
(Criminal) 371 (Mad) relied on by the learned Counsel for petitioner have no
application to this case."
The aforesaid case is distinguishable on facts. Apart from this aspect of the
matter, while exercising powers under Section 482 of the Code of Criminal
Procedure, prima facie, the allegation made in the complaint may have to be
looked into. When on the glance of the allegations made in the complaint it is
clear that straight away publication was made in Eenadu newspaper, this cannot
be said to be in compliance with any of the statutory provisions of the N.I.Act.
Hence, this Court is of the considered opinion that inasmuch as the provisions
of Section 138 of the Act aforesaid had not been complied with, the very filing
of the complaint is not in accordance with law and hence, the same is liable to
be quashed. Accordingly, the Criminal Petition is hereby allowed.
?1 2002 (2) ALT (Criminal) 22 (AP)
