The National Co-op. Bank Ltd. vs M.V. Rangachar

K. Ramanna, J.—This appeal is filed by the unsuccessful complainant challenging the order of acquittal dated 4/3/2005 acquitting the respondent for an offence punishable u/s 138 of the Negotiable Instruments Act, passed by the 16th Addl. C.M.M. Bangalore, in C.C. No. 2805/2003.

Brief facts of the case are that the appellant herein filed a private complaint u/s 138 of the Negotiable Instruments Act for dishonour of the cheque Ex.R2 dated 10/12/2002 for Rs. 49,58,010/- issued by the respondent/accused in favour of the appellant The cheque came to be presented on the very same day and it was dishonoured. Therefore, the appellant herein despatched the demand notice on 26/12/2002 but the same came to be unserved as ''not claimed''. The notice sent Under Certificate of Posting on 26/12/2002 is deemed to have served on the respondent personally at his residence. The respondent/accused though aware of the fact that his account in HSBC Ltd., Manipal Center, Dickensan Road, Bangalore, was closed on 6/11/2002 itself inspite of which, the respondent/accused issued a cheque and got it dishonoured and thereby, committed an offence u/s 138 of the Negotiable Instruments Act. Since the respondent failed to pay the cheque amount inspite of service of notice, the appellant was constrained to file a criminal complaint for the said offence.

The trial Court after recording the sworn statement of the appellant, issued summons to the respondent/accused. The respondent contested the matter and admitted the signatures on the cheque, letter etc., but the trial Court without considering the case on merits, dismissed the complaint only on the ground of limitation, that the statutory notice was not issued within the period of limitation i.e., 15 days and therefore, acquitted the respondent. Aggrieved by the said order, the appellant has come up with this appeal praying to set aside the order passed by the trial Court and to convict the respondent/accused for the offence punishable u/s 138 of the Negotiable Instruments Act, 1988.

Learned Counsel for the appellant contended that 15th day to issue demand notice fell on 25th December, 2002, which is a public holding and therefore, the notice came to be issued by R.P.A.D. on the next day i.e., 26/12/2002 being a working day. Therefore, the trial Court committed an error in holding that the appellant has not sent notice within 15 days i.e., from the date of receipt of the intimation of dishonour of the cheque from the bank. It is also submitted that the last date for sending the notice was a general holiday or public holiday and if the provisions of General Clauses Act be made applicable the notice sent an the next working day be sufficient Therefore, the trial Court has not properly appreciated the evidence and has come to the wrong conclusion. Therefore, prays that the appeal be allowed by setting aside the order passed by the trial Court.

On the other hand, learned Counsel for the respondent submitted that the appellant sent the notice on 16th day but Section 138(b) of the Negotiable Instruments Act clearly indicate that the notice shall be sent to the respondent within 15 days and it can be sent not only by registered post but also through the courier or tax etc., but no such attempt has been made by the complainant It is further argued that there is no law in the Negotiable Instruments Act that notice sent on the 16th day will be considered as valid if the previous day happens to be a general/public holiday. Therefore, the trial Court is right in dismissing the complaint and acquitting the respondent for the aforesaid offences. When there is a specific limitation or time limit for sending the notice within the stipulated time i.e., 15 days and if it is sent after that, then the appellant has to face the consequences. Therefore, the trial Court is right in dismissing the complaint and the appeal is therefore not at all maintainable.

In support of his contention, learned Counsel for the respondent relied upon a decision rendered by the Madhya Pradesh High Court reported in case of Devendra Kumar Surana Vs. Lalit, In Para.7 it has been clearly held thus:

It is true that in the Act; the specific provision for limitation for sending the notice of demand within fifteen days and it is after the receipt of the information about dishonour of the cheque by the Bank. In this section, there is no provision for condonation of delay on being shown sufficient cause by the concerned party. X x x.

In another decision reported in case of M/s. Sil Import, USA Vs. M/s. Exim Aides Silk Exporters, Bangalore, it has been held thus:

Dishonour of cheque - Notice to drawer of cheque demanding payment - can be sent by Fax - Mode of sending notice cannot be restricted to post or messenger.

Therefore, it is argued that the appellant being an institution knowing fully well the provisions of the Act could have sent the notice within 15 days. Therefore, the order passed by the trial Court does not suffer from any incorrectness or illegality or perverse findings and prays for dismissal of the appeal.

it is seen that the appellant is the Nationalized Bank Ltd., at Bangalore, received a cheque dated 10/12/2002 from the respondent for a huge sum and when it was presented on the same day, the same came to be dishonoured and the intimation was given to the appellant on the same day and therefore, the appellant is expected to issue notice within 15 days from 10/12/2002. No doubt, the notice Ex.P.4 dated 21/12/2002 actually was despatched on 26/12/2002. The appellant has not explained as to why it could not despatch the notice within 15 days and also as to why it was pending for 5 days without despatching the same to the respondent u/s 138 of the Negotiable Instruments Act it is mandatory that the notice should be issued to the accused within 15 days from the date of intimation from the hank about the dishonour of the cheque. The appellant should have sent the notice by speed post or by courier even though the IS111 day fell due on the public or General holiday, so that the respondent could have received the notice in time but no such attempt has been made by the appellant and the notice was actually posted on 26/12/2002 i.e., on the 16th day from the date of receipt of information from the bank about the dishonour of cheque. Under the Negotiable Instruments Act, the requirement of giving notice is mandatory and there is no provision under the Act to extent the time far sending notice to the drawer of the cheque demanding the cheque amount The notice ought to have been sent within the stipulated period, what is contemplated under the Act is notice in writing and not notice by post, therefore, the provisions of General Clauses Act cannot be made applicable to the special provisions made under the Negotiable Instruments Act In the instant case, there is no compliance of Section 138(b) of the Negotiable Instruments Act, as such, the accused/respondent cannot be convicted for the offence punishable u/s 138 of the Negotiable Instruments Act, as there was no opportunity to the drawer to mate the payment.

Therefore, the trial Court is right in recording its finding that the appellant has not compiled with the provisions of Section 138(b) of the Negotiable Instruments Act and rightly dismissed the complaint by acquitting the accused/respondent.

Therefore, viewed from any angle, I do not find any illegality or incorrectness in the order passed by the Court below and hence, this appeal fails and is name to be dismissed.

Accordingly, the appeal is dismissed as devoid of merits.