ORDER
P.S. Narayana, J.
1. Heard Mr. Jitender Rao, the Counsel for petitioner and Mr. Venkat Reddy, the Counsel for R-2-complainant and the learned P.P.
2. The only question raised by the Counsel for petitioner Mr. Jitender Rao is that there was no issuance of statutory notice as contemplated by Section 138 of the Negotiable Instruments Act (herein-after in abort referred to as 'N.I. Act'). The learned Counsel would maintain that even if the allegations made in the complaint, if taken on their face value, in view of the specific allegation, made that a notice was straight away issued by way of paper publication, the same cannot be said to be in compliance, with the provisions of the N.I. Act.
3. The learned Public Prosecutor, however, would contend that these aspects may have to be gone into at the appropriate stage.
4. Mr. Venkat Reddy, the learned Counsel representing R-2-complainant would submit that it is no doubt true that there is no specific allegation in the complaint that attempts were made to effect service before making the paper publication but these are all factual aspects which may have to be gone into at the appropriate stage. The learned Counsel also placed strong reliance on the decision of this Court in D. Nagaraj v. S. Balram III (2002) BC 551 : 2002(2) ALT (Crl.) 22 (AP).
5. Heard the Counsel.
6. The relevant portion of the complaint filed by R-2-complainant reads as hereunder:
That the accused has issued a cheque bearing No. C.A. No. 826307 dated 15.2.1994 for Rs. 10,000/- to the complainant for repayment of the due amount to the complainant The complainant presented the said cheque at Andhra Bank, Mancherial and the same was sent to Kalyankhani Branch (0803) of Andhra Bank for collection.
But the Branch Manager of Andhra Bank, Kalyankhani branch returned the cheque along with a memo dated 27.7.1994 stating that the cheque cannot be honoured due to insufficient of funds. On receiving the cheque and dishonour memo, the Branch Manager of Andhra Bank, Mancherial sent intimation dated 1.8.1994 to the complainant.
That the complainant issued a notice within statutory period of 15 days through paper publication in Adilabad District edition of Eenadu dated 1.8.1994. After publication of notice, and after expiry of 15 days grace period, the accused approached the complainant to wait for 15 days, to enable him to pay the cheque amount. But no payment was made by the accused to the complainant. Hence, the accused is liable for punishment under Sections 138 and 142 of N.I. Act.
7. On a careful reading of the allegations made in the complaint, it is clear that in para 3 it was specified that the complainant issued a notice within the statutory period of 15 days through paper publication in Adilabad District edition of Eenadu dt. 11.8.1994. This is the specific stand taken by the complainant-respondent No. 2 herein. No doubt strong reliance was placed on the decision of this Court in D. Nagaraj's case (supra) wherein the learned Judge of this Court held at para 6 as hereunder:
It is no doubt true that cause of action for filing of the complaint arises fifteen days after service of statutory notice of demand after dishonour of the cheque was served on the drawer. In view of the legal presumption available to the 1st respondent in case of notice sent by registered post, it can be presumed that the notice was served within two or three days after it was registered in the post office. Therefore, the cause of action for filing the complaint can be taken to have arisen about two or three days after statutory notice was registered in the post office. Since it is not the case of the petitioner that the complaint is filed beyond 30 days after service of statutory notice on him, it has to be taken that the complaint was filed within the period of limitation. As stated above since the presumption is a rebuttable presumption, depending on the evidence adduced by the parties during trial, the Trial Court has to decide whether notice was in fact served or not But the complaint cannot be quashed on the ground that notice was not served on the petitioner In the facts and circumstances of this case Shakti Travel and Tours Limited 2000(7) Supreme 90 and Rukhmaniraj Yarn Co. 2000(1) ALD (Criminal) 371 (Mad), relied on by the learned Counsel for petitioner have no application to this case.
The aforesaid case is distinguishable on facts. Apart from this aspect of the matter, while exercising powers under Section 482 of the Code of Criminal Procedure, prima facie, the allegation made in the complaint may have to be looked into. When on the glance of the allegations made in the complaint it is clear that straight away publication was made in Eenadu newspaper, this cannot be said to be in compliance with any of the statutory provisions of the N.I. Act. Hence, this Court is of the considered opinion that inasmuch as the provisions of Section 138 of the Act aforesaid had not been complied with, the very filing of the complaint is not in accordance with law and, hence, the same is liable to be quashed. Accordingly, the Criminal Petition is hereby allowed.