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M/S.AMARJOTHI SPINNING MILLS LTD. versus M/S. B.R.B.GARMENTS

High Court of Madras

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M/s.Amarjothi Spinning Mills Ltd. v. M/s. B.R.B.Garments - Criminal Revision Petition No.610 OF 2000 [2003] RD-TN 96 (10 February 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 10/02/2003

CORAM

THE HONOURABLE MR. JUSTICE A. PACKIARAJ

Criminal Revision Petition No.610 OF 2000

M/s.Amarjothi Spinning Mills Ltd.,

By its Collection Officer,

Mr.G.L.N.Pandian

Pudusuripalayam, Nambiyur,

Erode District ... Petitioner -Vs-

M/s. B.R.B.Garments

represented by its

Prop.R.Balakrishnan

15,Kongu Nagar,

4th Street, Tirupur-7. ..... Respondent PRAYER: Revision filed against the judgment dated 4.4.2000 and made in Crl.M.P.No.268 of 2000 in CC No.10 of 2000 on the file of the Judicial Magistrate No.2, Gobichetipalayam.

For petitioner : Mr.N.Ishtaq Ahmed

For Respondent : ---

:O R D E R



This revision has been filed against the orders passed by the Judicial Magistrate No.2, Gobichettipalayam in Crl.M.p.No.268 of 2000 in CC No.10 of 2000, discharging the accused, by dropping the proceedings against the respondent herein who was accused of offence under Section 138 Negotiable Instruments Act.

2.When the revision was admitted here, notice was issued to the accused through this Court and the same appears to have been received by the accused. However, he has not appeared either in person or through counsel. The matter has been appearing in the list on several occasions and on none of the hearings, there was any representation. The matter was last posted to 06.02.2003, on which day also there was no representation. Subsequently, when the matter was called on today, i.e. 10.2.2003, today also there is no representation. Hence, I am constrained to hear the petitioner, peruse the records and pass orders.

3.A complaint had been given against the accused for offence under section 138 and 142 Negotiable Instruments Act stating that the accused had purchased Hosiery yarns on credit and as a consideration thereof had issued a cheque for Rs.87,210/- vide his cheque dated 08.11.199 9. When the same was presented in the Bank of Baroda, Nambiyur Branch Gobi Taluk, the same was returned on 22.11.1999 on the ground of ' insufficiency of funds'. Hence notice was issued to the accused on 06.1 2.1999 intimating about the dishonour of the cheque. However the notice had not been served on the accused. Meantime, the accused had also approached the complainant and requested him to present the cheque again and assured that there is money in the Bank. Believing the representation of the accused, the cheque was once again presented in the bank and again it met the same fate. After complying with all the formalities, the present complaint has been filed.

4.The learned Magistrate, after taking cognizance of the offence had issued summons to the accused and on receipt of the same, the accused appeared and filed a petition to drop the proceedings, relying on the judgment of the Supreme Court that once a notice had been issued to the accused after the cheque having been bounced and the cause of action arises on the lapse of the 15th day of the notice having been issued to the accused. In support of his argument he relied on the decision of the Supreme Court made in Sadanandan Bhadran Vs. Madhavan Sunil Kumar reported in 1998 Vol.2, MWN (Cr.) (SC) 286 wherein Their Lordships have stated that consequent upon the failure of the drawer to pay the money within 15 days, envisaged under clause (c) of the proviso of Section 138 of the Negotiable Instruments Act, the liability of the drawer for being prosecuted for the offence arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. In that case where the cheque had been subsequently presented and the same having been dishonourned and further notice had been given and the accused having received the same had not paid the money, prosecution was launched and the Supreme Court has held that there cannot be two cause of action for the same offence and had dropped the proceedings in so far as the accused is concerned. However the facts are totally different in the present case. But on the other hand, in the present case, the accused volunteered before the complainant and requested him to present the cheque again and on his assurance the cheque was presented which met the same fate.

5.The learned counsel for the petitioner would place reliance on the decision of the Supreme Court in Dalmia Cements Versus Galaxy Traders and Agencies Ltd., and others reported in 2001 (1) CTC 538 wherein their Lordships have focussed the objective and the act initiated to achieve while so, they have stated in paragraph 3 and 6 as follows:-

3. ...... The law relating to negotiable instrument is the law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments, including a cheque, the trade and commerce activities in the present day are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to another. To achieve the objectives of the Act, the Legislature has, in its wisdom, thought it proper to make such provisions in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite their being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are required to be discouraged lest it may affect the commercial and mercantile activities in a smooth and healthy manner ultimately affecting the economy of the country.

6.To constitute an offence under section 138 of the Act the complainant is obliged to prove its ingredients which include the receipt of notice by the accused under Clause (B). It is to be kept in mind that it is not the "giving" of the notice which makes the offence but it is the 'receipt' of the notice by the drawer which gives the cause of action to the complainant to file the complaint within the statutory period. This court in K.Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr. 1999 (3) CTC 358 : JT 1999 (7) SC 558 : 1999 (7) SCC 510 considered the difference between 'giving' of a notice and 'receipt' of the notice and held:

"On the part of the payee he has to make a demand by 'giving a notice' in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such 'giving', the travails of the prosecution would have been very much lessened. But the Legislature says that failure on the part of the drawer to pay the amount should be within 15 days 'of the receipt' of the said notice. It is, therefore, clear that 'giving notice' in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address."

6.Therefore, the emphasis made by the Supreme Court is on the factum of the receipt of the notice by the accused and in spite of the same, if he had not paid the amount, the cause of action takes effect. But admittedly in the present case, it has been averred that he has not received the notice. In addition to this, even in his objection filed before the court for discharge, he has not stated that he has not received notice and that terminates the cause of action.

7.Hence, I am of the opinion that the decision referred to by the learned Magistrate would not apply to the facts and circumstances of the case. Consequently, I set aside the order of the learned Magistrate and direct him to take the matter on file and issue summons to the accused and proceed further with the matter. As the case relates to the year 1999, I direct the Magistrate to give preference to this case and dispose of it as early as possible. The revision petition is allowed.

tar

Index:Yes

Website:Yes

To

1.The Judicial Magistrate No.II, Gobichettipayalam 2.-do- Through the Chief Judicial Magistrate, Erode. 


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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