N.S.Rasheed v. R.Loganathan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 17-09-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL ORIGINAL PETITION No.9467 OF 2007N.S.Rasheed...Petitioner-vs-R.Loganathan...RespondentPetition under Section 482 of the Code of Criminal Procedure.For petitioner : Mr.Rupert J.Barnabas for Mr.M.Maharaja. For respondent : Mr.S.VijayakumarO R D E RThis petition has been filed to call for the records of thelearned Judicial Magistrate, Alandur, Chennai, and quash the proceedingsin C.C.No.244 of 2007 on his file.2. Petitioner is accused in C.C.No.244 of 2007. Respondentlodged a complaint under Section 138 of the Negotiable Instruments Actbefore the Court below, on the strength of two cheques for Rs.1,60,000/-each, dated 05.09.2006. It is stated in the complaint that on 09.10.2006,he issued a legal notice, which was received by the accused. 3. Learned counsel for the petitioner would strenuously contendthat taking cognizance of the complaint by the Judicial Magistrate is inviolation of law and that the petitioner did not receive any notice fromthe respondent, with regard to the claim on the strength of the cheques. 4. In fact, on 02.09.2006, the respondent presented both thecheques to his banker, but, on 12.09.2006, they were dishonoured, on theground 'funds insufficient'. https://hcservices.ecourts.gov.in/hcservices/

5. It is very much stressed by the learned counsel for thepetitioner that the date of cheques being 05.09.2006, presenting of thesame on 02.09.2006 is not proper; on 02.09.2006, the cheques remained onlyas bills of exchange and they did not become cheques. In support of hiscontention, the learned counsel relied upon a decision of the Hon'bleSupreme Court in Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd., 2001Supreme Court Cases (Cri) 582 = 2001 (3) Supreme Court Cases 609, in whichit was held that when a post-dated cheque is written or drawn, it is onlya bill of exchange.6. Another circumstance to be noted in this case is, therespondent had not presented the cheques to the State Bank of Travancore,Perumbavoor, on which the cheques were drawn, but, they were presented toUTI Bank, Madipakkam Branch, Chennai, on 02.09.2006. 7. The contention of the learned counsel for the respondent isthat even though the cheques were presented to UTI Bank on 02.09.2006,only on 12.09.2006, the said Bank returned the cheques, under reference"funds insufficient" and this intimation of 'insufficient funds' wasintimated to the respondent on 25.09.2006; it is immaterial that thecheques were presented to some other bank, previous to the date mentionedin the cheques, as, they should be received by the bank on which thecheques were drawn after 05.09.2006 and, in this case, the very fact thatthe cheques were returned on 12.09.2006 shows that they were received byState Bank of Travancore, Perumbavoor Branch, only after 05.09.2006.8. In support of his contention, learned counsel for therespondent garnered support from a decision of the Supreme Court in AnilKumar Sawhney v. Gulshan Rai, 1993 Supreme Court Cases (Cri) 1243, inwhich it was held that the post-dated cheque is not payable till the datewhich is shown on the face of the said document and it will only becomecheque on the date shown on it and prior to that it remains a bill ofexchange under Section 5 of the Act.9. An identical question of law was also discussed by a DivisionBench of the Kerala High Court in Manaoj K. Seth v. R.J.Fernandez, 1991Cri.L.J.3253, the operative portion of which is culled out as under :"9. In considering the said aspect, it will benecessary to know the character of a post-dated cheque.Post-dated cheque is one containing a later date thanthat of the delivery. Therefore, it has an impliednotice that there is no present deposit to the creditof the drawer and an implied guarantee that the fundswould exist when it becomes due. Though the cheque ispayable only on a future date, it may be negotiable.There is no prohibition in the Act against post-datinga cheque. If a banker pays the amount before the duedate of a cheque, he will lose the statutory protection https://hcservices.ecourts.gov.in/hcservices/ arising from such payment. In the decision in Jiwanlalv. Rameshwarlal, AIR 1967 SC 1118, in considering thequestion as to when would a payment be deemed to havebeen made as per a post-dated cheque for the purpose ofSection 20 of the Limitation Act, it is held that thematerial date is the date on which the payment couldhave been made. In that case, post-dated cheque wasgiven on 4.2.1954, it was dated February 25,1954. TheSupreme Court held in para 8 at page 1122 :'We are, therefore, of opinion thatas a post-dated cheque was given onFebruary 4, 1954, and it was datedFebruary 25,1954, and as this was not acase of unconditional acceptance, thepayment for the purpose of Section 20 ofthe Limitation Act could only be onFebruary 25,1954, when the cheque couldhave been presented at the earliest forpayment."10. Pertinent it is to state that the learned counsel for therespondent also relied upon the same decision of the Hon'ble SupremeCourt, which was cited by the learned counsel for the petitioner, in ShriIshar Alloy Steels Ltd. v. Jayaswals Neco Ltd., 2001 Supreme Court Cases(Cri) 582 = 2001 (3) Supreme Court Cases 609. The principles laid down inthe said decision containing the relevant portions, which both the counselrelied upon, are as follows :"To make an offence under Section 138 of theAct, it is mandatory that the cheque is presentedto "the bank" within the statutory period. When apost-dated cheque is written or drawn, it is only abill of exchange. The post-dated cheque becomes acheque under the Act on the date which is writtenon the said cheque and the six months' period hasto be reckoned, for the purposes of Section 138 ofthe Act, from the said date.The use of the words "a bank" and "the bank"in the section are an indicator of the intention ofthe legislature. "The bank" referred to in proviso(a) to Section 138 of the Act would mean the draweebank on which the cheque is drawn and not allbanks where the cheque is presented for collectionincluding the bank of the payee, in whose favourthe cheque is issued." https://hcservices.ecourts.gov.in/hcservices/

11. The Apex Court has laid down a law that if a post-datedcheque is presented to a bank, it is only a bill of exchange and dishonourof which will not attract the provisions of Section 138 of the NegotiableInstruments Act. But, in this case, the cheques were presented forcollection to the bank of the payee, namely, respondent and the bank, onwhich the cheques were drawn, received them only after 05.09.2006. 12. Hence, applying the principles laid down by the Hon'ble ApexCourt, it has to be held that the procedure has been scrupulously followedby the respondent and the complaint lodged by the respondent is thoroughlyin order.13. The next limb of contention of the learned counsel for thepetitioner is that he was not served with legal notice, allegedly issuedby the respondent.14. As a matter of fact, the respondent sent a legal notice tothe petitioner through his counsel on 09.10.2006, but he did not receiveacknowledgement therefor. Hence, he lodged a complaint with the postaldepartment, for which, on 14.11.2006, receipt of the letter wasacknowledged by the Customer Care Centre of the said Department. On21.11.2006 also, a communication was received by the respondent,mentioning as follows :"In continuation of our letter regarding thecomplaint No.60020011833, it is to inform you thatthe complaint of Non Receipt of Ack./Proof ofDelivery of Registered Letters with Acknowledgementwith Transaction No.A2685 on 11/10/2006 of ALANDHUR –600 016 is settled on 20/11/2006 with the followinginformation that "KINDLY INTIMATE THE FULL ADDRESSPARTICULARS OF THE ADDRESSEE WITH PIN CODE FORFURTHER INQUIRY. ON RECEIPT OF THE SAME, THE CASEWILL BE INDEXED AFRESH". Thereafter, on 29.06.2007, a communication with caption "complaint status"was forwarded to the respondent, in which it was stated that the complaintwas pending.15. The above said communications from the postal departmentwould go a long way to show that the respondent has consciously beenpursuing the matter to get acknowledgement from the petitioner, to showproper service.16. In this context, the argument of the learned counsel for therespondent is that as per the settled proposition of law, it is to betreated that service on the petitioner is duly effected. In support of https://hcservices.ecourts.gov.in/hcservices/ his contention, the learned counsel garnered support from a decision ofthe Hon'ble Apex Court in C.C.Alavi Haji v. Palapetty Muhammed & Anr.,2007 (7) SCALE 380, in which it was held as follows :"18. In the instant case, the averment made in thecomplaint in this regard is : "Though the complainantissued lawyer's notice intimating the dishonour ofcheque and demanded payment on 4.8.2001, the same wasreturned on 10.8.2001, saying that the accused was 'outof station". True, there was no averment to the effectthat the notice was sent at the correct address of thedrawer of the cheque by 'registered postacknowledgement due'. But the returned envelope wasannexed to the complaint and it thus, formed a part ofthe complaint which showed that the notice was sent byregistered post acknowledgement due to the correctaddress and was returned with an endorsement that 'theaddressee was abroad'. We are of the view that onfacts in hand the requirements of Section 138 of theAct had been sufficiently complied with and thedecision of the High Court does not call forinterference." 17. Following the observations made in the above said decision,it is to be held in this case that service has become sufficient, for thereason that the notice was sent by registered post with acknowledgementdue to the address of the petitioner, but, it was not returned. Inaddition, possible steps have also been taken by the respondent to getacknowledgement from the petitioner. Hence, as per the above said ruling,the observation to be brought about is that the requirements of Section138 of the Negotiable Instruments Act have been amply fulfilled.18. For the foregoing reasons, this Court does not find anyvalid ground for quashing the proceedings in C.C.No.244 of 2007 on thefile of learned Judicial Magistrate, Alandhur, Chennai. As such, thispetition suffers dismissal and is, accordingly, dismissed. Consequently,the connected Criminal M.P.No.2 of 2007 also stands dismissed and CriminalM.P.No.3 of 2007, for vacating the stay, stands allowed.dixitSd/-Asst.Registrar/true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Judicial Magistrate, Alandur.2. -do- Thro' The Chief Judicial Magistrate, Chengalpattu.+3 ccs to Mr.M.Maharaja, Advocate Sr.No.57906.+1 cc to Mr.S.Vijayakumar, Advocate Sr.No.57906.TS(CO)dcp/19.9CRL.O.P.No.9467 OF 2007