1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.1884 OF 2008 Sou. Shilpa A. Suratwala (Through Power of Attorney Holder Shri Anil Chandrakant Suratwala) : Petitioner (Orig.Complainant) V/s. Monika Developers Pvt. Ltd., through its Director Mr.Ramesh Ramu & Anr. : Respondents (Resp.No.1-Org.Accused) .... WITH CRIMINAL WRIT PETITION NO.1885 OF 2008 Shri Dattatraya S. Thorat : Petitioner (Orig.Complainant) V/s. Monika Developers Pvt. Ltd., through its Director Mr.Ramesh Ramu & Anr. : Respondents (Resp.No.1-Orig.Accused) ... AND CRIMINAL WRIT PETITION NO.1886 OF 2008 Mr.Firoz Khan : Petitioner (Orig.Complainant) V/s. Monika Developers Pvt. Ltd., though its Director Mr.Ramesh Ramu & Anr. : Respondents (Resp.No.1-Orig.Accused) ... 2 Mrs.Revati Mohite-Dere for the petitioners. Ms S.G.Dandige for respondent no.1. Mr.D.R.More, Addl. Public Prosecutor for the State in Cri.W.P.No.1884 of 2008. Ms M.H.Mhatre, Addl. Public Prosecutor for the State in Cri.W.P.Nos. 1885 of 2008 & 1886 of 2008. ... CORAM : S.A. BOBDE, J. DATE : AUGUST 14, 2009. ORAL ORDER: Rule, returnable forthwith. The learned counsel for the respective respondents waive service. Heard by consent. 2. A common question arises in these three petitions, viz., whether a notice of demand under section 138 of the Negotiable Instruments Act, 1881, hereinafter referred to as the “Act”, is illegal because it specifies a period shorter than 15 days for making payment. 3. In all the three cases involved in these three Writ Petitions, the petitioners are the complainants who, in the notice of demand against the same respondent no.1-firm, issued under section 138 of the Act and demanded payment within 8 days of the notice. On the complaints, the 3 Magistrate issued process. However, the respondent no.1 preferred revisions to the Sessions Court. The Sessions Court vide judgements quashed the process on the ground that the notice of demand imposed a period of eight days on the accused which was not permissible. These Writ Petitions are preferred against those orders quashing the process. 4. Mrs.Mohite-Dere, the learned counsel for the petitioners, submitted that the notices which demanded payment from the accused within eight days could not have been held to be illegal and defeasive of the right to launch a prosecution since the law does not prescribe that the notice should specify a certain period within which the noticee must make payment. According to the learned counsel, the provision does not prescribe any period whatsoever, but merely provides the period within which the payee may make payment i.e. 15 days. Therefore, the impugned orders quashing the process are contrary to law. 5. Ms Dandige, the learned counsel for the respondent no.1, submitted that by virtue of demand under section 138 of the Act, a complainant cannot demand payment within any period shorter than 15 days provided by law for making the payment. Any notice which arbitrarily curtails the period must, therefore, be held to be illegal. 4 6. It is, therefore, necessary to examine the provisions. The proviso to section 138 of the Act reads as follows:- “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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.” Neither clause (b) nor clause (c) of the proviso prescribed a period which must be specified in the notice of demand issued to the payee. Clause (b) prescribes that a demand must be made by a notice in writing issued to the drawer of the cheque within 30 days of the information that the cheque has been returned unpaid. The effect of clause (c) is that the liability for being prosecuted under section 138 is withheld for a period of 15 days during which the drawer of the cheque may make payment of the 5 cheque demanded or in which case the liability extinguishes. Nowhere does the proviso prescribe that the notice should make the demand within a specified period such as 15 days. This provision has already been considered by the Supreme Court in Rahul Builders v. Arihant Fertilizers & Chemical (2008 (1) DCR 132). In that case, the High Court had quashed the process on the ground that the notice had demanded the amount within a period of ten days which was not the prescribed period of 15 days. Reversing the view of the High Court, the Supreme Court observed as follows:- “8. Section 138 does not speak of a 15 days’ notice. It contemplates service of notice and payment of the amount of cheque within 15 days from the date of receipt thereof. When the statute prescribes for service of notice specifying a particular period, it should be expressly stated. In absence of any such stipulation, it is difficult to hold that 15 days’ notice was thereby contemplated. The High Court, therefore, was not correct in arriving at the aforementioned finding.” 7. Similarly, the notice in the present case makes a demand within a period of eight days and has been quashed by the learned Sessions Judge on the ground that it does not provide for a period of 15 days. In view of the law laid down in Rahul Builders’ case, it must be held that the process was not liable to be quashed merely because the notice prescribed the period of eight days instead of 15 days. The law does not require the 6 payee of the cheque to specify the period within which the drawer of the cheque should make payment in the notice of demand. It is sufficient that a payee of a cheque is free to make a demand of payment within any time he chooses, but since no period is specified therein, from the scheme of the law, it is clear that the prosecution instituted before a period of 15 days by law to the drawer of the cheque to make payment would not be tenable. 8. At this juncture, it would be appropriate to refer to the well-known provision in section 106 of the Transfer of Property Act, sub-section (3) of which reads as follows:- “(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.” The view taken in respect of a notice under the Negotiable Instruments Act is quite apposite. 7 9. The view I have taken should not be understood to allow the drawer of a cheque to issue a notice demanding payment, say within a period of 6 months and then commence prosecution on failure to make payment within a shorter period, say 15 days. Such a situation would involve different considerations. In any case, that not being the case here, it is not necessary for me to decide that question. 10. The learned counsel for the petitioners also referred to several other decisions of various High Courts which have taken the view that mentioning a period lesser than 15 days in the notice of demand would not affect the complainant’s right to launch prosecution if the complainant has waited for 15 days and then exercised his right of filing a complaint before the Court. The said decisions are of the Madras High Court in P.V.R.S.Manikumar v. Krishna Reddy (1999 Cri.L.J. 2010); Manivannan, Prop. Satya Hoisery Garments, Pondicherry v. Ever King Garments (1994 (3) Crimes 262); the Andhra Pradesh High Court in D. Nagaraj v. S. Balram [(2002) 112 Company Cases 502]; the Calcutta High Court in Santipriya Sen v. S.P.Bhattacharyya [(2001) 106 Company Cases 124]; and the Madhya Pradesh High Court in Dhirajsingh s/o. Kalusingh v. Sardarsingh s/o. Laljiram (2008 All MR (Cri.) Journal 184). In Satyavan Chaplot v. Rajendra (1998 Cri.L.J. 2309), the 8 Rajasthan High Court has held that it is not necessary to mention any period in the notice within which the payment of cheque is necessary. 11. In the result, the impugned orders are liable to be quashed and set aside and are, accordingly, quashed and set aside. The orders issuing process shall be revived and the trial shall proceed, in accordance with law. Rule is made absolute in the aforesaid terms. (S.A. BOBDE, J.)