HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.3941 of 2008 ORDER: This Criminal Petition is filed by the Petitioners/Accused Nos.1 and 2 (For short, ‘the Accused’) under Section 482 Cr.P.C seeking to quash proceedings in C.C. No.567 of 2007 on the file of the Court of Additional Judicial Magistrate of First Class, Ramachandrapuram, East Godavari District, registered for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘The Act’). 2. Whereas the Petitioners are Accused Nos.1 and 2, the first respondent is Complainant in the above Calendar Case. For the sake of convenience, I refer the parties as arrayed in the Calendar Case. 3. The prosecution case is that the complainant filed a complaint under Section 138 of the Act alleging that A-1 and A-2 jointly borrowed an amount of Rs.2 lakhs on 21-12-2003 from him for the purpose of their business repayable with interest at the rate of 24% p.a. and executed promissory note in favour of the complainant. Subsequently, A-1 and A-2 issued cheque for Rs.2 lakhs bearing No.0279126, dated 09-10-2005 drawn in favour of complainant on the Lakshmi Vilas Bank Limited, Visakhapatnam towards part payment of the promissory note amount. On presentation of the said cheque by the complainant in Andhra Bank, Anaparthi branch on 27-10-2005, the same was dishonoured on the ground that ‘Account closed’ and the said fact was intimated by the accused bank i.e. Lakshmi Vilas Bank Limited, Visakhapatnam to the complainant’s bank i.e. Andhra Bank, Anaparthi branch by its memo dated 29-10-2005 along with dishonoured cheque and a memo and the complainant received the memo and dishonoured cheque on 01-11-2005. Subsequently, the complainant got issued a registered notice through his advocate dated 05-11-2005 to A-1 and A- 2 demanding them for repayment of the said cheque amount and A-1 received the same and A-2 was given intimation by the postal authorities on 19-11-2005. Since A-1 and A-2 failed to repay said cheque amount within 15 days from 19-11-2005, both of them are liable for prosecution. 4. The contention of learned counsel for the Accused that even as per the documents filed by the complainant, necessary information was given to the complainant’s banker on 09-11-2005 from the accused bank i.e. Lakshmi Vilas Bank, Visakhapatnam but the complainant issued the corresponding notice only on 05-11-2005 and therefore the notice demanding the accused to pay the amount informing about the dishonour of the cheque is not valid and hence the complainant got no cause of action to file the complaint before the Court. 5. On the other hand, it is the contention of learned counsel for the complainant that the complainant in fact, received necessary information from his banker on 01-11-2005 only following which, he issued the notice and even though there is endorsement on the back of the cheque to the effect that his bank received the information of dishonour of cheque on 09-11-2005 the same need not be taken seriously. Further, there can be oral information of the same to the Complainant having received some kind of information from the Bank of the Accused. Further, Section 138 (b) of the Act does not contemplate that there should have been a written information about such fact in reply it is the contention of learned counsel for the Accused that initially it is not pleaded that such oral information was received by the Complainant following which the notice was issued and therefore he is barred from taking such a plea. 6. The point for consideration is whether there are sufficient circumstances to quash the proceedings? 7. POINT:- Significantly, there is no dispute about the endorsement made on the back of the cheque by the banker of the complainant that it received the information about the dishonour of cheque from the other bank on 09-11-2005 only whereas, there is also no dispute that the complainant issued the notice on 05-11-2005 only. But what is significant here is that as per the record, the cheque was dishonoured on 29-10-2005 and subsequent to that only i.e. on 05-11- 2005 the notice was issued to the Accused informing about the dishonour of the cheque and demanding to pay the due amount. Section 138 of the Act reads: “Dishonour of cheque for insufficiency, etc., of funds in the account:- Where any 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, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for (a term which may be extended to two years), 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 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.” 8. Section 138 (b) of the Act does not envisage that there should be written information of such factor. No doubt, by virtue of the endorsement made on the back of the cheque it must be that the Bank received the written information only on 09-11-2005, but when the actual dishonour of the cheque took place on 29-10-2005 and consequently the notice was issued on 05-11-2005 it prima-facie provides that having received necessary information only the notice was given to the Accused at a later point for necessary compliance. Therefore, there is a question as to whether he received such oral information before the issuance of the notice and as to whether only the endorsement made on the back of the cheque is to be taken into consideration, in that context, which can be decided only basing upon some evidence to be recorded. It is not the specific case of the Complainant that having received only written information he issued the notice, whereas the Complainant only provides that on receiving necessary information from the bank he proceeded with issuing the notice on 05-11-2005. It is quite possible that even prior to receiving the written information, the bank got the information about the dishonour of cheque and it was intimated to the Complainant orally following which the notice was issued. Therefore, I am unable to uphold the claim of the Accused at this stage and accordingly the Criminal Petition is liable to be dismissed. Accordingly, The Criminal Petition is dismissed and the trial Court is directed to dispose of the matter independently considering all relevant circumstances. Further, since the matter has become very old, the trial Court is further directed to dispose of the matter within a period of three (3) months from the date of receipt of a copy of this order. __________________________ G. KRISHNA MOHAN REDDY, J Dated: 16-09-2011. Dsh/Vjl. THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 257 CRIMINAL PETITION No.3941 OF 2008 (Date.16-09-2011). Dsh.