Section 138 of the N.I. Act has been analysed by the Apex
Court in Kusum Ingots & Alloys Ltd. Vs. Pennar Peterson
Securities Ltd. (2000) 2 SCC 745, and it is held that the
following ingredients are required to be satisfied for making out a
case under Section 138 of the N.I. Act, which read thus :
“(i) a person must have drawn a cheque on an account
maintained by him in a bank for payment of a certain
amount of money to another person from out of that
account for the discharge of any debt or other liability;
(ii) that 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;
(iii) the cheque is returned by the bank unpaid, either
because the amount of money standing to the credit of the
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 the bank;
(iv) the payee or the holder in due course of the cheque
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 15 days of the receipt of information by
him from the bank regarding the return of the cheque as
unpaid;
(v) the drawer of such cheque fails to make payment of
the said amount of money to the payee or the holder in
due course of the cheque within 15 days of the receipt of
the said notice.”
7. The offence under Section 138 of the Ni.I. Act would be
completed only when all the above components are satisfied.
Issuance of notice, in writing, to the drawer of the cheque is one
of the essential components of Section 138 of the N.I. Act. As it
has been held by the Apex Court in Central Bank of India & Anr.
Vs. Saxons Farms and Ors. 1999(8) SCC 221, the object of the
notice is to give a chance to the drawer of the cheque to rectify his
omission and also to protect honest drawer. Service of notice of
demand in clause (b) of the proviso to Section 138 is a condition
precedence for filing a complaint under Section 138 of the N.I.
Act.
8. Reverting to the fact of the present case, the appellant –
complainant had deposed that he had given a notice dated
13.05.1994 to the respondent no.1 herein through his advocate.
He had produced the copy of the notice at Exh.49. PW1 had
stated that the said notice was received by one Asmita Amrutrao
Kadam on 23rd May, 1994 and that he could identify her signature.
He has deposed that the accused was residing in the house of
Amrutrao Kadam, the father of Asmita. He had, therefore, issued
the notice on the said address. The appellant – PW1 complainant
had further stated that earlier he used to send letters on the said
address.
9. It is pertinent to note that the copy of the notice at Exh.49,
states the address of the respondent no.1 as Nipaniwada, Nipani,
Tal. Chikodi, Dist. Belgaum. PW1 complainant had admitted in his
crossexamination that the respondent no.1 accused was a
permanent resident of Nipani. He has also admitted that in the
Regular Civil Suit No.594 of 1993, he had given the address of the
accused as a resident of Nipani. He had further admitted that he
had filed the affidavit in the said civil suit wherein he had
solemnly affirmed that the respondent no.1 was a permanent
resident of Nipani. He has stated that he has no documents to
show that the respondent no.1 accused was a resident of Pune.
10. There is no evidence on record to prove that the accused
was at any time residing at Pune. On the contrary, evidence of the
appellant – complainant clearly reveals that the respondent no.1
accused is a permanent resident of Nipani, despite which he had
sent the notice under Section 138 of the N.I. Act at the address of
one Amrutrao Kadam, at Pune. It is also pertinent to ntoe that
the appellant – complainant has stated that the said notice was
received by one Asmita. He has, however not established the
relationship between the said Asmita and the respondent no.1
accused. Under the circumstances, the learned Magistrate was
perfectly justified in holding that the complainant has not
complied with the mandatory requirement of issuance of notice.
The view taken by the learned Magistrate is a possible view and
the same does not warrant any interference.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 561 OF 1999
Vilasrao Shripatrao Patil v/s. Pratapsingh Ranojirao Desai
CORAM: SMT. ANUJA PRABHUDESSAI, J.
DATED: 28th AUGUST, 2015.
Citation:2016 ALLMR(CRI)2430
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