9911796707
TMI Blog2009 (3) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... er worth Rs. 34,880/- and issued a blank cheque numbered 006795 for the said order on the instruction of the respondent that it was the usual practice in the industry and that subject to availability of the ordered items, they used to fill the cheque amount and present it for collection. On 06.09.2006, the goods ordered, were sent vide invoice No. 2006 801 973. 5. Learned Counsel for the petitioner submits that the respondent should have encashed the cheque No. 006795 for Rs. 34,880/-, but they retained the cheque with them intentionally and fraudulently. Subsequently, the respondent vide invoice No. 2006802354 sent more goods worth Rs. 1,05,792. This transaction was offered by the respondent on its own to the petitioner, which however was not accepted by the petitioner and is not binding on the petitioner. The petitioner also sent an e-mail to the respondent and requested that AC Drives be taken back as neither he had placed the order nor he was in a position to stock the material. 6. However, the respondent intentionally and fraudulently not only filled the blank cheque in question against invoice No. 2006801873 worth Rs. 34,880 but also filled it for invoice No. 20060802354 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the complaint has been filed beyond the period of limitation and hence is not maintainable, thus the summoning order is bad in law. Learned Counsel submits that as per the complaint, petitioner herein had issued Cheque No. 006795, dated 03.12.2006 amounting to Rs. 1,40,672 drawn on Vijaya Bank, Tirupur, Tamil Nadu. It is stated in the complaint that the cheque, in question, on being deposited, was dishonoured and after which a legal notice dated 04.06.2007 under Sections 138 and 141 of the Negotiable Instruments Act was issued. It is also stated that this legal notice was, in fact, a notice of demand and the limitation is to begin from this date. Learned Counsel for the petitioner in support of his contentions has relied upon the case of Uniplas India Ltd. v. State (Govt. of NCT of Delhi) reported at 1999 (2) JCC 418 (Delhi) as well as in the case of Puri International (P) Ltd. v. Ram Lal Bansiwal & Sons, reported at 135 (2006) DLT 103. 11. Learned Counsel for the respondent on the other hand has opposed this petition primarily on two grounds. While it is not denied that an earlier communication dated 26.3.2007 was issued to the petitioner it is submitted by learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uant to the letter dated 26.03.2007. The proviso to Section 142(b) enables the court to take cognizance even after the prescribed period of one month, if the complainant satisfies the court that he had sufficient cause for not making the complaint within such period. It is further submitted that admittedly the letter dated 26.03.2007 had been received by the petitioner. If the defence now put forward is true, then nothing prevented the petitioner to reply to the said letter dated 26.03.2007 raising these very pleas which are being pressed into service for quashing the complaint. Learned Counsel submits that no ground is made out for quashing the complaint. 15. I have heard learned Counsel for the parties, who have taken me through the records of this case. The factum of issuance of the communication dated 26.03.2007 has not been denied. The first issue that arises for consideration is whether the communication dated 26.03.2007, sent by the respondent to the petitioner, constitutes a notice of demand within the meaning of proviso (b) to Section 138 of the Negotiable Instruments Act, 1881 or not. 16. In the case of Krishna Exports v. Raju Das reported at (2004) 13 SCC 498 it was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cheque amount within 5 days of dishonour of cheque to ensure the resumption of supplies from the manufacturer. The dealer shall also make good for the bank charges and interest levied in such cases. Manufacturer reserves the right to initiate legal action in case the payment along with stated penalty and bank charges is not received within 5 days of cheque dishonour. Thanking you, Yours faithfully, Bhartia Industries Limited KK Raghu Verma Techno Commercial Officer Encls: As above. 87, Dr. Nanjappa Road, Coimbatore, 641018 Ph.+91(0422) 2305311 Fax.2302599 web site www.bchindia.com 18. A bare reading of this communication dated 26.03.2007 would show that it has been addressed to the petitioner herein. The number of the bounced cheque, date of the said cheque, amount and the name of the bank finds mention in this communication. It was also brought to the notice of the addressee that the said cheque has been returned with the remarks "Insufficient Funds". A request was made to make the payment, by way of demand draft, of the total amount, due together with penalty @ 2.0 percent of the cheque amount and bank charges. What is most relevant is that in the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to create another cause of action to file a complaint for the purpose of launching a prosecution on it. Para 6 of the said decision contains the thrust of the reasoning. After referring to the four factual premises necessary to concatenate into a cause of action M.K. Mukherjee, J., has said thus: (SCC p. 519, para 6) If we were to proceed on the basis of the generic meaning of the term "cause of action., certainly each of the above facts would constitute a part of the cause of action but then it is significant to note that Clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. The reason behind giving such a restrictive meaning is not far to seek. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
