Case Note & Summary
The petitioner, Smt. M. Shashikala, was facing trial in a complaint filed by the respondent, Sri Krishna Murthy, under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of a cheque. The cheque bearing No.000020, dated 17.12.2012, drawn on Bank of Baroda, Indiranagar Branch, Bengaluru, was issued by the petitioner. When presented, it was returned dishonoured on 19.12.2012. The respondent sent a notice dated 19.01.2013 demanding payment of the cheque amount. Since payment was not made, a complaint was filed on 28.02.2013. The learned Magistrate dispensed with the sworn statement of the complainant and permitted filing of an affidavit in lieu thereof on 23.08.2013, and being satisfied that ingredients of Section 138 were made out, took cognizance and issued process. The petitioner filed this petition under Section 482 Cr.P.C. contending that the complaint was not maintainable as the statutory notice was not issued within the stipulated period of 30 days from the date of dishonour. The respondent's counsel submitted that if the petition is allowed, the respondent may be reserved with the right to institute a suit for recovery of the cheque amount. The court examined the undisputed facts: the cheque was dishonoured on 19.12.2012, and the notice was sent on 19.01.2013, which is beyond 30 days. The court held that the notice was not issued within the stipulated period, and therefore the complaint was not maintainable. The court allowed the petition, quashed the proceedings in C.C.No.51659/2013, and reserved liberty to the respondent to institute a civil suit for recovery of the cheque amount.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Statutory Notice - Maintainability - The complaint under Section 138 of the Negotiable Instruments Act, 1881 is not maintainable if the statutory notice demanding payment is not issued within 30 days from the date of dishonour of the cheque - In this case, the cheque was dishonoured on 19.12.2012, but the notice was sent on 19.01.2013, which is beyond the 30-day period - Held that the complaint is not maintainable and the proceedings are liable to be quashed (Paras 4-5).
Issue of Consideration
Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 is maintainable when the statutory notice demanding payment was not issued within the stipulated period of 30 days from the date of dishonour of the cheque.
Final Decision
The petition is allowed. The proceedings in C.C.No.51659/2013 on the file of XIV Addl. Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru, are quashed. Liberty is reserved to the respondent to institute a suit against the petitioner for recovery of the cheque amount.
Law Points
- Statutory notice under Section 138 of Negotiable Instruments Act must be issued within 30 days of cheque dishonour
- Failure to issue notice within stipulated period renders complaint not maintainable
- Section 482 Cr.P.C. can be invoked to quash proceedings where complaint is not maintainable on admitted facts
Case Details
2015 LawText (KAR) (04) 28
Criminal Petition No.263/2014
Sri P. Narayanappa (for petitioner), Sri Deepak J. (for respondent)
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Nature of Litigation
Criminal petition under Section 482 Cr.P.C. seeking quashing of proceedings in a complaint under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheque.
Remedy Sought
Petitioner sought quashing of entire proceedings in C.C.No.51659/2013 pending before XIV Addl. Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru.
Filing Reason
Petitioner contended that the complaint was not maintainable as the statutory notice was not issued within the stipulated period of 30 days from the date of dishonour of the cheque.
Previous Decisions
The learned Magistrate had taken cognizance and issued process after being satisfied that ingredients of Section 138 of the Act were made out.
Issues
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 is maintainable when the statutory notice was not issued within 30 days from the date of dishonour of the cheque.
Submissions/Arguments
Petitioner's counsel argued that even on admitted facts, the complaint is not maintainable as the statutory notice was not issued within the stipulated period, and therefore the cognizance taken and process issued are illegal, liable to be quashed.
Respondent's counsel submitted that if the petition is allowed, the respondent may be reserved with the right to institute a suit against the petitioner for recovery of the cheque amount.
Ratio Decidendi
A complaint under Section 138 of the Negotiable Instruments Act, 1881 is not maintainable if the statutory notice demanding payment is not issued within 30 days from the date of dishonour of the cheque. The notice in this case was sent on 19.01.2013, which is beyond 30 days from the dishonour on 19.12.2012, rendering the complaint not maintainable.
Judgment Excerpts
Undisputed facts are that, a complaint under Section 200 of the Act was filed by the respondent, on the basis of a cheque bearing No.000020, dated 17.12.2012, drawn on Bank of Baroda, Indiranagar Branch, Bengaluru, which had been issued by the petitioner, when presented, was returned dishonoured on 19.12.2012 by the Bank. A notice dated 19.01.2013 was sent demanding payment of the cheque amount.
In the instant case, the cheque was dishonoured on 19.12.2012. The notice demanding payment was sent on 19.01.2013. The notice was not issued within the stipulated period. Hence, the complaint is not maintainable.
Procedural History
The respondent filed a complaint under Section 200 of the Negotiable Instruments Act, 1881 on 28.02.2013 before the XIV Addl. Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru, based on a cheque dishonoured on 19.12.2012. The learned Magistrate dispensed with sworn statement and permitted filing of affidavit on 23.08.2013, and thereafter took cognizance and issued process. The petitioner filed Criminal Petition No.263/2014 under Section 482 Cr.P.C. seeking quashing of the proceedings.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 200
- Code of Criminal Procedure, 1973 (Cr.P.C.): 482
