Judgment:
ORDER
Subhash B.Adi, J.
1. Petitioner has called in question the order in P.C.R. No. 24121/2005 passed by 12th A.C.M.M., dated 26.10.2005 confirmed by Fast Track Court-IX, Bangalore, in Crl. R.P. No. 628/2005 dated 29.3.2007.
2. Petitioner is the complainant. He filed a private complaint under Section 200 of Cr.P.C. for an offence punishable under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as the 'Act) interalia alleging that, the respondent herein had borrowed Rs. 1,00,000/- promising that, he would pay the same within a period of 10 days. When he did not pay the amount, he had issued a cheque drawn on Canara Bank, at Belgaum, on 20.1.2005. The said cheque was presented to the banker of the complainant and the banker of the complainant by its endorsement dated 3.6.2005 returned the cheque interalia informing the complainant that the cheque is not honoured for want of fund (insufficient fund).
3. In this regard, on 1.7.2005 complainant issued legal notice by R.P.A.D. in terms of Section 138(b) of the Act, however, the said notice returned un-served on the ground 'addressee not found'. Thereafter, the complainant issued one more notice dated 26.7.2005 which was duly served on the respondent. The respondent also gives a reply to the said legal notice. Since the respondent did not pay the amount as demanded by the petitioner, petitioner filed a complaint before the learned Magistrate on 27.8.2005.
4. The learned Magistrate registered P.C.R. and took cognizance of the offence. Thereafter, he posted the matter for recording sworn statement. After recording the sworn statement, the learned Magistrate posted the matter to consider the question of maintainability of the complaint and by his order dated 26.10.2005, dismissed the complaint mainly on the ground that, the legal notice was issued on 1.7.2005 and the said notice returned with an endorsement no such person and the complainant again has sent another notice on 26.7.2005 and thereafter he has filed a complaint, which is beyond 30 days period prescribed under Section 142 of the Act and held that, there was no cause of action to the complainant to file complaint after limitation period.
3. The order of dismissal of the complaint passed by the learned Magistrate was called in question before the revisional Court. The revisional Court also considering, the matter held that, the order of the learned Magistrate does not call for interference and accordingly dismissed the revision petition. Against both these orders, this petition has been filed.
4. Learned Counsel for the petitioner submitted that, the complainant issued legal notice within 30 days from the date of intimation received from the bank and the said notice was not served on the respondent on the ground that 'no such person was available'. It is thereafter, again the petitioner issued another notice on 26.7.2005 and the said notice was served on the respondent and from the date of service of notice, the petitioner after giving 15 days time for payment, he filed a complaint well within time stipulated under Section 142 of the Act i.e. within one month from the date of cause of action and the complaint is perfectly in consonance with the provisions of Section 138(b) of the Act r/w 142 of the Act.
5. Sri D. Ravikumar Gokakkar, learned Counsel appearing for the respondent submitted that, once cause of action accrued to the petitioner, he should have filed complaint in time and he cannot get another cause of action for filing the complaint. The petitioner having issued the legal notice on 1.2.2007 and the said notice having returned, there is no provision under Section 138 of the Act to issue one more legal notice and based on second notice, complaint could not have been filed. 30 days period for filing the complaint will commence from the date of expiry of 15 days of the date of first notice and not from the date of second notice and submitted that, both the Courts have concurrently held that the complaint is not maintainable and thereby has rightly dismissed the complaint.
6. Section 138 of the Negotiable Instrument Act constituted an offence in case; 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 arrangement 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 one year, or with fine which may extend to twice the amount of the cheque or with both.
7. To attract the offence proviso to Section 138 requires that, the complainant shall present the cheque within six months from the date on which it is drawn, and on presentation, if it is returned dishonoured on account of insufficient fund or exceeding the arrangement, the complainant is required to issue a legal notice demanding payment within 30 days from the issue of endorsement and in case the amount is not paid within 15 days from the date of receipt of the said notice, the cause of action accrues to the complainant to file a complaint within 30 days thereafter in terms of Section 142 of the Act.
8. In this case, the complainant had issued notice on 1.7.2005 and the said notice has returned with a postal shara intimating that, 'no such person'. It is in this regard, the complainant issued one more notice dated 26.7.2005 which was served on the respondent and from the date of service after the lapse of 15 days and within one month, the complaint has been filed before the jurisdictional Magistrate. Insofar as filing of the complaint within one month from the date of service of notice on the respondent after giving 15 days time in terms of Section 138(c) of the Act, there is no dispute. However, what is argued is that, first notice has to be taken into consideration for the purpose of calculating the period of limitation.
9. Section 138(b) of the Act requires the complainant to give a notice and Section 138(c) of the Act requires the service of notice on the respondent and thereafter 15 days time has to be given for the respondent to make good the amount and in case if that amount is not paid within 15 days of service of notice, the cause of action accrues to the complainant to file a complaint within one month thereafter. Section 142(b) of the Act states, filing of the complaint within one month from the date of cause of action under Section 138(c) of the Act.
10. Reading of Section 138(b) and Section 138(c) of the Act, the requirement is that, notice has to be given for the purpose of demanding the amount due under the cheque and the purpose for which the notice is given, is giving one more chance to the accused to pay the amount involved in the cheque within 15 days. In case the amount is paid within 15 days, no cause of action accrues nor it will constitute any offence, however, if an amount is not paid within 15 days from the date of service of notice, then cause of action accrues from the date of non payment within 15 days from service of notice. Reading of Section 138(b)(c) and 142 of Negotiable Instruments Act, it makes it clear that, 15 days time has to be given to the accused after service of notice. Hence, service of notice assumes importance. Merely sending notice will not give cause of action.
11. To comply with Section 138(c) of the Act, it requires the service of notice on the accused for demanding money. The first notice which was sent, though it was a legal notice, if that is not served and it does not give any presumption to the complainant of the service of notice in terms of Section 27 of the General Clauses Act, then it cannot be held that, the service of notice is complied. Section 138(c) of the Act requires the service of notice to get a cause of action. In my opinion, first notice was not served, it is returned with an endorsement that, 'no such person', that cannot give cause of action. Complainant required to serve the notice. First notice must be within 30 days from the date of issue of endorsement by the bank. Both the provisions under Sections 138(b) and (c) of the Act have to be interpreted harmoniously, so as to give purposeful meaning. In case the first notice is taken into consideration and if it is not served for valid reason, then no complaint could be filed, as Section 138(c) requires service of notice.
12. Assuming that the first notice is taken into consideration, if that is not served on the accused for valid reason as per Section 138(c) of the Negotiable Instruments Act, notice required to be served, because it requires the service of notice and it is only on service of notice under Section 142 of the Act cause of action arises, the second notice has to be considered. Hence, the dismissal of the complaint at thresh hold by the learned Magistrate is highly misconceived and one without application of mind to the provisions under the Act, so also the learned Fast Track Judge has not even looked into the provisions and thereby committed error. Hence, both the orders requires to be set aside.
13. Accordingly, this petition is allowed. The impugned order is set aside. The matter is remitted to the learned Magistrate to proceed with the matter from the stage where it was stopped.