Farhan Hassan Kitab vs Tariq Ahmad Haji

Mohammad Yaqoob Mir, J.—The respondent is dealing with the business of wholesale footwear items with principal place of business at

Qamarwari under the name and style of ""New World Line Footwear"". Petitioner is proprietor of a retail footwear shop being run under the name

and style of ""Catwalk"" situated at Regal Chowk, Srinagar. Petitioner purchased the footwear's and issued 12 cheques on different dates bearing

serial Nos. 12776350 to 12776361. The respondent presented the said cheques in Jammu & Kashmir Bank Ltd. Branch Office Residency Road,

Srinagar. 11 Cheques bearing serial Nos. 12776350 to 12776360 were returned unpaid with memo. dated 06.01.2009 carrying endorsement to

the following effect ""not sufficient"" whereas 12th cheque bearing serial No. 12776361 was returned unpaid with memo. dated 23.01.2009 carrying

endorsement ""not sufficient"".

Respondent has issued notice of demand u/s 138 of the Negotiable Instruments Act (hereinafter referred to as NI Act) on 05.02.2009. When

the amount was not paid, respondent filed a complaint of which cognizance has been taken and process issued. The said complaint, in view of non

appearance of the parties, was dismissed on 31st May, 2011 but said dismissal order was challenged by the respondent by medium of a revision

petition which has been allowed by the Court of 1st Additional Sessions Judge, Srinagar vide judgment dated 28.12.2011 holding therein that the

complaint could not be dismissed for default for the reasons as recorded in the judgment. As a result thereof, complaint has been taken up for

further proceedings by the trial court.

Petitioner by virtue of this petition filed u/s 561A, Cr.P.C. has projected that when the cheques were returned unpaid, the respondent was

required to issue notice of demand within 30 days of the receipt of information by him from the bank regarding return of the cheque as unpaid.

Admittedly the respondent had received information from the bank about return of 11 cheques bearing serial Nos. 12776350 to 12776360 on

06.01.2009, so notice of demand should have been issued up to 4th February, 2009. With regard to 12th cheque bearing No. 12776361,

information regarding return of the cheque as unpaid, admittedly was received by the respondent on 23.01.2009.

Learned counsel for the petitioner would contend that the respondent has issued a composite notice of demand u/s 138 clause (b) to the proviso

of NI Act on 05.02.2009. Notice of demand vis-a-vis 11 cheques is issued after the stipulated time. It being so, the Magistrate should not have

taken the cognizance as the notice was barred by limitation. In support of this contention, learned counsel has relied on the judgment rendered by

Hon'ble Apex Court in the case Sivakumar v. Natarajan, (Criminal Appeal No. 1077 of 2009) and also on the judgment rendered by the High

Court of Delhi in the case Dheeraj Jain Vs. State and Another, , wherein quashment of the proceedings before the trial court was sought on the

ground that the legal notice was given beyond 30 days of the knowledge of dishonour of cheques.

Counsel for the respondent in opposition would contend that the object of NI Act cannot be permitted to be frustrated on hyper technical

grounds. That apart, according to him, the notice of demand has been issued within time.

While considering rival submissions and the record, the admitted position as has emerged is that 11 cheques bearing Nos. 12776350 to

12776360 have been returned unpaid as intimated to the respondent on 06.01.2009. The notice of demand was required to be issued within 30

days, as is the mandate of Clause (b) of Proviso to Section 138 of NI Act.

In the judgment Sivakumar v. Natarajan, rendered by the Hon'ble Apex Court on 15th May, 2009, the position of issuance of notice of demand

and knowledge regarding cheque having been returned unpaid is identical. In the said judgment cheque was issued on 27.11.2003, same was

presented for collection on the same date, it was dishonoured with the remark ""insufficient funds"" on 02.12.2003. Information was received by the

complainant on 03.12.2012. The complainant had issued notice of demand on 02.01.2004. The core question which had emerged for

consideration as quoted in para. 9 of the judgment was as to whether notice dated 02.01.2004 was issued within the stipulated period of thirty

days from the date of receipt of intimation of the dishonour of cheque. In para. 11 it has been opined that ""the parliament advisedly did not use the

words 'from the date of receipt of information' in Section 138 of the Act"". In para. 12, it has been noticed that ""indisputably, the notice was issued

on the 31st day and not within a period of thirty days from the date of receipt of information from the bank"".

In the judgment rendered by the High Court of Delhi in case Dheeraj Iain v. State & Anr., as referred above, the complainant therein had got

the knowledge about dishonour of cheque on 10th July, 2010 but had issued notice on 10th August, 2010. The complainant had projected that he

had in fact received the information about dishonour of cheque on 12th July, 2010 but it was noticed that there was no such averment in the

complaint. The notice was held to have been issued after the stipulated period of 30 days and finally it was concluded that the notice of demand

having not been issued within 30 days, so the complaint was not maintainable. The order of summoning and proceedings pursuant thereto were

quashed.

Applying the ratio of the said judgment to the present case, it clearly comes to the fore that the notice of demand vis-a-vis 11 cheques was

admittedly issued after the stipulated period of 30 days, as envisaged by Clause (b) of Proviso to Section 138 of NI Act. So the complaint vis-a-

vis said 11 cheques was not maintainable. This aspect of the case has been lost sight by the Magistrate.

So far as 12th cheques is concerned, knowledge of its dishonour has been received by the complainant on 23.01.2009, so the composite

notice of demand issued on 05.02.2009 vis-a-vis said cheque is within the stipulated period of 30 days. It appears that the respondent has

consciously issued a composite notice so as to cover the position of issuance of notice of demand beyond 30 days vis-a-vis other 11 cheques.

Cumulative effect of the aforesaid discussion is that the complaint vis-a-vis 11 cheques bearing serial Nos. 12776350 to 12776360 is not

maintainable. The cognizance taken by the Magistrate, as such, is quashed and the complaint vis-avis said 11 cheques being not maintainable shall

be deemed dismissed.

The complaint may survive vis-a-vis cheque No. 12776361; therefore, trial court shall afresh consider the complaint only to the extent of said

cheque. Counsel for the respondent shall ask the complainant to appear before the trial court, if he so chooses, on 26.07.2013. Trial court record

along with copy of the order be sent back so as to reach to the trial court well before the date fixed.