Case Law Details
Engineering Control Vs Banday Infratech Pvt. Ltd (Jammu & Kashmir High Court)
The only ground urged by the petitioner for challenging the impugned complaint and the order of taking cognizance is that statutory notice of demand has not been served upon him, inasmuch as the address on which the respondent has dispatched the said notice is incorrect to the knowledge of the respondent. It is contended that the petitioner is a resident of Delhi but the notice of demand has been dispatched by the respondent/complainant on a wrong address at Jammu. Thus, according to the petitioner, without service of statutory notice of demand upon him, it cannot be stated that the offence under Section 138 of the NI Act is made out against him. It is urged that the learned trial Magistrate has not taken note of this aspect of the matter and passed the impugned order dated 15.04.2015 which is liable to be set aside.
Proviso to Section 138 of the NIA Act stipulates that three conditions must be satisfied before dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented before 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. The second condition is that the payee or the holder in due course of the cheque must make a demand for payment of the amount of money by 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 return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make 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. It is only upon the satisfaction of all the aforesaid three conditions that an offence under Section 138 can be said to have been committed by the person issuing the cheque. Thus, giving of notice of demand to the payee within the stipulated period after dishonor of a cheque is one of the necessary conditions for making out the offence under Section 138 of the NIA Act.
For constitution of an offence under Section 138 of the Act, the notice must be received by the accused. The Court went on to observe that it may be deemed to have been received in certain situations. An inference of having received the notice by a drawer of a cheque can be raised only if the notice has been dispatched to his correct address. Such an inference cannot be drawn if the notice has been sent on the incorrect address of the drawer of the cheque.
In the instant case, the trial court record clearly shows that the address of the petitioner/accused is not correctly mentioned either in the complaint or in the notice of demand. It is for this reason that the respondent/complainant was directed by the trial Magistrate to furnish fresh particulars of the petitioner/accused. The address of the petitioner is shown as “Vasundra Enclave, Jammu” which is patently incorrect. The second address of the petitioner shown in the notice of demand and the complaint as “Anand Prabat, New Delhi” is incomplete, inasmuch as it lacks necessary details that would enable a postman to locate the addresses. Once the material on record clearly suggests that the statutory notice of demand was sent by the respondent/complainant on a wrong address, the presumption of receipt of notice by the petitioner/accused does not arise. Thus, the pre-condition of filing a complaint under Section 138 of the NI Act of sending a statutory notice has not been satisfied in the present case. Therefore, no cause of action arose in favour of the respondent/complainant to file the subject complaint. He, therefore, could not have instituted the complaint nor the trial court could have taken cognizance of the offence and issued process against the petitioner.
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