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2020 (9) TMI 1186 - HC - Indian LawsDishonor of Cheque - validity of summon order passed by the Court - Intent of drawer is clear that he will not make payment - HELD THAT - The provision of Section 138 of the Act, 1881 cannot be interpreted to mean that even if the accused refuses to make payment, the complainant cannot file a complaint. Proviso (c) of the said Act is to see the bona fide of the drawer of the cheque and is with a view to grant him a chance to make the payment - In this case, the cheque was drawn by the accused on an account maintained by him with the bank. The period of 15 days is for making payment. In this case the accused did not make the payment and did not even appear before the Court below for a year. It is in the month of August, 2020 that he has approached this Court. In the case in hand, the petitioner herein replied to the notice which goes to show that the intention of the drawer is clear that he did not wish to make the payment. Once this is clarified, should the complainant wait for the minimum period of 15 days, the answer would be 'no' - Reason given by the learned Magistrate is very clear. It is well reasoned order which was passed on 30.11.2019. For a period of one year, the petitioner has chosen not to appear before the learned Magistrate and has moved this Court now. This petition is dismissed with cost of ₹ 15,000/- to be deposited before the Court below.
Issues:
Challenge to summoning order under Section 138 of the Negotiable Instruments Act, 1881 Analysis: 1. The petitioner challenged the summoning order dated 3.9.2019, related to dishonored cheques issued on 1.3.2019 and 2.3.2019, leading to a complaint under Section 138 of the Act. 2. The petitioner's counsel argued that the summoning order was flawed as it was filed before the 15-day period for reply elapsed, citing a judgment without specific reference. 3. The petitioner contended that the complaint was premature, emphasizing the need for a waiting period after notice issuance before filing a complaint under Section 138. 4. The main issue raised was whether the complainant should wait for 15 days after notice issuance if the drawer's intention not to pay is evident, challenging the necessity of the waiting period. 5. The court examined Sections 138 and 142 of the Act, emphasizing that the purpose of the 15-day period is to provide the drawer an opportunity to make payment before prosecution, as per legal precedents. 6. Referring to relevant case laws, the court differentiated the present case from precedents where notice-reply dynamics were different, supporting the validity of the summoning order in this instance. 7. The court highlighted that the petitioner's response to the notice indicated a clear intention not to pay, justifying the complainant's immediate action without waiting for the 15-day period. 8. Considering the petitioner's delay in appearing before the magistrate and the well-reasoned summoning order, the court dismissed the petition with a cost of ?15,000, directing the petitioner to appear before the court by a specified date. This detailed analysis of the judgment provides insights into the legal interpretation of Section 138 of the Negotiable Instruments Act, emphasizing the importance of procedural compliance and the court's rationale in upholding the summoning order in the case at hand.
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