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TMI Blog1997 (1) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to issue process under section 138 of the Act, or secondly whether under such circumstances it is equally the duty of the court also to see that along with the process to be issued for the alleged offence under section 138 of the Act, it also issues process under section 420 of the Code against the accused ?" 2. Respondent No. 1, Dipak Chimanlal Patel - Jigar Engineering Industries, GIDC, Vatva, Ahmedabad, filed a complaint before the learned Metropolitan Magistrate Court No. 7, Ahmedabad, against the petitioners Dipendra G. Choksi and Ashaben G. Choksi - partners, director and managing director, respectively of Sunchem Enterprise, situated at Plot No. 41, GIDC, Vatva, Ahmedabad, for the alleged offence punishable under section 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repeated demands, since the outstanding amounts towards the bills were not paid, the complainant gave a registered notice on June 20, 1989, to the petitioners requesting them to remit the outstanding bill amount with interest, giving further warning that if any default was committed in payment of the money, the complainant would be constrained to file a criminal complaint. Despite service of the said notice, since the outstanding bill amounts were not paid by the petitioners, respondent No. 1 filed a complaint in the court of the learned Metropolitan Magistrate Court No. 7, Ahmedabad, on July 24, 1989, against them, on the basis of which, the court issued the process for the alleged offence under section 138 of the Act, giving rise to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Provided that nothing contained in this section shall apply unless - (a) the cheque has been presented to 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 (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of the Act, it is further clear that the complainant was a "holder in due course" and that lie had made demand for the payment of the amount in question by giving a statutory notice in writing to the petitioners-drawers of the cheques within 15 days of the receipt of the information by him from the bank regarding return of the cheques as unpaid. Thirdly, bearing in mind proviso (c) to section 138 of the Act, the petitioners-drawers of the cheques in question have failed to make payment of the amount in question to the complainant within 15 days of the receipt of the said notice. Not only that but fourthly, bearing in mind the provision regarding cognizance of offence engrafted in section 142(a) of the Act, respondent No. 1 who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque with an endorsement refer to drawer", the payee is still legally entitled to once again deposit the very same cheque before the bank more particularly when he was so assured by the drawer of the cheque that the due amount will be deposited in the bank in a few days and that the said cheque thereafter on second presentation would be honoured. In this view of the matter once we find that there is indeed no such express statutory prohibition mandating the payee of the cheque not to repeatedly present the cheque, once it was returned with endorsement "refer to drawer" there is indeed nothing on the basis of which such hopeless plea can be allowed in favour of the petitioners Once this legal position is made clear and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charge accordingly only under the said section 138 ignoring altogether section 420 of the Indian Penal Code, 1860. In this view of the matter, assuming for the sake of argument that in such type of cases even if there are some such noncompliance of sections 138 and 142 of the Act, if the material facts alleged in the complaint otherwise prima facie disclose the offence under section 420 of the Indian Penal Code, 1860, then such dishonest person who dupes the otherside, turns his back, backing out from paying the cheque amount, he has indeed no right or business to throw dust of technical points in the eyes of the court and pray for quashing the process issued against him/them conveniently taking unjust shelter under some non-compliance of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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