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TMI Blog2012 (1) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... le Instruments Act, in exercise of the powers under section 319 of the Code of Criminal Procedure. 2.00. Facts leading to the present petition in nutshell are as under :- 2.01. That the respondent No.2 herein original complainant has filed the complaint being Criminal Case No.3789 of 2005 against one Umesh Sarjivan Jain in the court of learned Judicial Magistrate (First Class), Junagadh for the offence punishable under section 138 of the Negotiable Instruments Act for dishonour of the cheque No.55987 dtd.6/10/2005 for an amount of Rs.1 Lac, drawn by Jain Electronics, a Proprietorship Firm, alleged to have been signed by the petitioner herein Somesh Jain. That in the said complaint initially the learned Magistrate directed to issue Summons against the said Umesh Jain for the offence punishable under section 138 of the Negotiable Instruments Act. That thereafter trial proceeded further and plea of the accused was recorded, who pleaded not guilty and thereafter evidence of the original complainant was recorded and even thereafter evidence of both the sides were recorded and thereafter the evidence of the original complainant was closed. That during the cross-examination of the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3.00. Mr.Tushar Sheth, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned revisional court has materially erred in allowing the revision application and quashing and setting aside the order passed by the learned Magistrate passed below application Ex.51 in Criminal Case No. 3789 of 2005. It is further submitted that as such the said order passed by the learned Magistrate below application Ex.51 in rejecting the said application was absolutely just and proper and in consonance with the provisions of the Negotiable Instruments Act, more particularly section 138 of the Negotiable Instruments Act which was not required to be interfered with by the revisional court. It is further submitted by Mr.Sheth learned advocate appearing on behalf of the petitioner that the learned revisional court has not properly appreciated that no statutory notice as required under section 138 of the Negotiable Instruments Act was issued and served upon the petitioner and therefore, in absence of any statutory notice as required under section 138 of the Negotiable Instruments Act, the complaint against the petitioner for the offence under section 138 of the Nego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that only from the deposition of the original accused Umesh Jain it came to the knowledge of the complainant that in fact dishonoured cheque has been signed by the petitioner and therefore, when the dishonoured cheque has been signed by the petitioner, he is rightly arraigned as accused for the offence punishable under section 138 of the Negotiable Instruments Act while exercising powers under section 319 of the Code of Criminal Procedure. 4.01. Mr.Malkan, learned advocate appearing on behalf of the original complainant has heavily relied upon the decision of the Division Bench in the case of Satish Chand Singhal Vs. State of Gujarat and Others , reported in 2006(3) GLR 2209 by submitting that a similar contention was raised that since statutory notice was not served upon the person who was sought to be arraigned as accused while exercising powers under section 319 of the Code of Criminal Procedure, he could not have been arraigned as accused, the Division Bench has held that despite non-service of the statutory notice as required under section 138 of the Negotiable Instruments Act such person can be arraigned as accused in exercise of the powers under section 319 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under section 138 of the Negotiable Instruments Act has been filed, has been issued by one Jain Electronics, a Proprietorship Firm. It appears that the said cheque was given to complainant by original accused Umesh Jain. It is also required to be noted that even statutory notice as required under section 138 of the Negotiable Instruments Act has been issued by the original complainant upon original accused Umesh Jain and even said notice was served upon the said Umesh Jain. Therefore, admittedly no statutory notice as required under section 138 of the Negotiable Instruments Act has been issued and served upon the petitioner herein, who is sought to be arraigned as accused for the offence under section 138 of the Negotiable Instruments Act. 7.02. Considering the provisions of section 138 of the Negotiable Instruments Act only in a case where a 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 and said cheque has been presented to the bank within six months from the date on which it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under section 138 of the Negotiable Instruments Act. 7.03. In the present case, as stated above, admittedly no notice has been issued and served upon the petitioner as required under section 138 of the Negotiable Instruments Act and therefore, cause of action for filing the complaint against the petitioner for the offence under section 138 of the Negotiable Instruments Act does not arise. Therefore, as such in absence of any statutory notice upon the petitioner even as proprietor of Jain Electronics, a Proprietorship Firm drawer of the cheque, petitioner cannot be prosecuted for the offence under section 138 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Director of a Company and drawer of the cheque was the Company which was arraigned as accused and even statutory notice was also served upon the Company drawer of the cheque and subsequently during the trial it was found that the person who was to be arraigned as accused in exercise of the powers under section 319 of the Code of Criminal Procedure, was found to be in day-to-day management and affairs of the Company as a Director and therefore when he was sought to be arraigned as accused in exercise of the powers under section 319 of the Code of Criminal Procedure, it was contended by such director that in absence of any statutory notice upon him, he cannot be arraigned as accused. Considering section 141 of the Negotiable Instruments Act, the Division Bench confirmed the order passed by the learned Single Judge that notice upon the Company drawer of the cheque can be said to be a deemed notice upon the Director of the Company, who was found to be in day-to-day management and affairs of the Company and therefore, the Division Bench negatived the contention of the said Director and has held that such a Director can be arraigned as accused in exercise of the powers under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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