While interpreting Section 138 of the Negotiable Instrument Act, 1881, the Hon’ble High Court of Allahabad has held that once the intention of the party is clear that it does not wish to make payment, the Complainant need not wait for the minimum period 15 days.
The said order was passed by Justice Dr. Kaushal Jayendra Thaker in a petition filed by one Ravi Dixit wherein he challenged the summoning order passed by the Magistrate, while contending that he had already filed a reply and the complaint could have been filed only after 15 days of his reply.
As per the facts, two cheques amounting to Rs. 5, 00,000/- (Rupees Five Lakhs Only/) and Rs.5, 98,000/- (Rupees Five Lakhs Ninety Eight Thousand Only/) respectively, bounced on 28.5.2019. As the Complainant did not receive any money, he filed a complaint under Section 138 of Negotiable Instrument Act, 1881 on 29.6.2019.
The Counsel for the Petitioner submitted that the summoning order was without compliance of provisions of Section 138 of the Act, 1881 and that the application had been falsely implicated due to enmity and financial dispute with the complainant and that cheques were dishonoured as he had directed stop of payment.
He further stated that if the notice was sent on 11.6.2019 and no date of service has been mentioned, as per general clause Act, 30 days’ time would have been presumed for service of notice and 15 days thereafter for waiting period of payment and, then only the complaint should have been filed.
The High Court in the present matter noted that the Petitioner had replied to the notice which goes to show that he had no intention to make the payment and once this is clear, the complainant does not have to wait for the minimum period of 15 days.
The judgment passed in the matter of N. Parameswaram Unni v. G. Kannan, (2017) 5 SCC 737 was relied upon as in the said case, notice was deemed to have been served to the petitioner and he was under an obligation to discharge his liability which he has not done. The only object of proviso (c) to Section 138 of the Act, 1881 was to avoid unnecessary hardship if the drawer wants to make payment. Hence, this Court did not find any reason to interfere with the well reasoned summoning order passed by the learned Magistrate.
Justice Thaker therefore directed the Petitioner to appear before the Court of Magistrate in terms of the summoning order, on or before 15.10.2020, failing which the Court shall be free to take steps as provided by law.
The petition was dismissed with costs of Rs. 15,000/-.