IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH WEDNESDAY THE FOURTH DAY OF JUNE TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL PETITION NO. 2629 OF 2012
Between:
Kattamuri Chitti Babu … Petitioner/Accused V/s.
Pasumarthy Kesava Rao & Anr. … Respondents/Complainant Counsel for the Petitioner : Smt. T.V.Sridevi Counsel for the Respondents : Public Prosecutor The court made the following : [order follows] HONOURABLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL PETITION NO. 2629 OF 2012
O R D E R :
This Criminal Petition is filed to quash proceedings in CC.No. 68 of 2010 on the file of Additional Judicial Magistrate of First Class, Bobbilli, Vizianagaram district.
2. Though notice is served on the first respondent/defacto complainant, none appeared on behalf of first respondent. Heard Advocate for Petitioner and learned Public Prosecutor.
3. Advocate for petitioner submitted that petitioner and first respondent are cousin and petitioner never took loan from first respondent and the present complaint is filed only to harass the petitioner. She submits in the legal notice dated 19/05/2010 the amount mentioned is Rs.3,00,000/- but according to complaint cheque amount is referred as Rs.30,000/-. She further submitted that in the legal notice the details of the creditor and on whose behalf of notice is issued is not mentioned and under section 138 (b) of Negotiable Instruments Act, 1881 it is mandatory to give those details in the legal notice. She further submitted in the legal notice only ten days time is mentioned whereas under section 138 (c) of Negotiable Instruments Act, fifteen days clear notice is mandatory. She submitted that prima facie the allegations in the complaint are contra to the averments of the legal notice and the present complaint is only to harass the petitioner.
4. I have perused the material papers filed alongwith the criminal petition.
5. Section 138 of Negotiable Instruments Act, 1881 reads as hereunder:
Section 138 Dishonour of cheque for insufficiency, etc., of funds in the account :
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment [for a term which may extend to two years] or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless ---
(a) the 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.
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money giving a notice, in writing, to the drawer of the cheque [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation :- For the purpose of this section, “debt or other liability” means a legally enforceable debt or other liability.
5. As seen from the complaint, the allegations against the petitioner is that he borrowed Rs.30,000/- [Rs. Thirty Thousand only] from the complainant for his necessities as a hand-loan. The complaint is silent as to the date on which the hand-loan was taken. According to allegations of the complaint, the complainant presented the cheque bearing No. 105167 dated 30/04/2010 for Rs.30,000/- and the same was returned with an endorsement “insufficient funds” and thereafter he got issued a legal notice on 19/05/2010 demanding the cheque amount. As seen from the legal notice issued to the petitioner, the allegation in the said notice is that cheque bearing No. 105167 drawn on Union Bank of India dated 30/04/2010 is for Rs.3,00,000/- [Rs. Three Lakhs only] whereas the allegation in the complaint is the said cheque is for Rs.30,000/- [Rs. Thirty Thousand only]. The copy of the cheque would also disclose that the cheque amount is only Rs.30,000/-. So as rightly contended that the legal notice said to have been issued on 19/05/2010 is contra to the complaint allegations in respect of cheque amount, therefore there is non--compliance of section 138 [c] of Negotiable Instruments Act, 1881. To take cognizance on the complaint filed under section 138 of Negotiable Instruments Act, 1881 there must be a legal notice demanding cheque amount within thirty days after receipt of information of dishonour and after waiting for fifteen days, the complaint has to be filed. Here the legal notice is not in accordance with the provisions of section 138 of Negotiable Instruments Act, 1881, therefore, complaint instituted without following the procedure under section 138 of Negotiable Instruments Act cannot be entertained.
6. Further as seen from the legal notice, there is no reference in the notice on whose behalf the said notice was issued. As per section 138 (b) of Negotiable Instrument Act, payee has to make a demand on the drawer of the cheque for the cheque amount. Therefore, both section 138 (b) and (c) of Negotiable Instruments Act are not complied with by the complainant and the court below without looking into these aspects took cognizance on the complaint filed by the complainant and registered CC.No. 68 of 2010. As the complainant failed to comply, the mandatory requirements of provisions of section 138 of Negotiable Instruments Act, the proceedings in CC.No. 68 of 2010 on the file of Additional Judicial Magistrate of First Class, Bobbilli, Vizianagaram district are liable to be quashed.
7. Accordingly, the Criminal Petition is allowed.
JUSTICE S. RAVI KUMAR.
04/06/2014 I s L HONOURABLE SRI JUSTICE S. RAVI KUMAR CRIMINAL PETITION NO. 2629 OF 2012 Circulation No. 64 Date: 04/06/2014 Court Master: I s L Computer No. 43